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STUDIES  IN  HISTORY,  ECONOMICS  AND  PUBLIC  LAW 

EDITED  BY  THE  FACULTY  OF   POLITICAL  SCIENCE 
OF  COLUMBIA   UNIVERSITY 


Volume  L] 


[Number  2 


Whole  Number  126 


THE    STATUS    OF    ALIENS 
IN  CHINA 


VI  KYUIN  WELLINGTON  KOO,  Ph.D., 

English  Secretary  to  the  Presid'ent  of  China 


COLUMBIA    UNIVERSITY 

LONGMANS,  GREEN  &  CO.,  AGENTS 

London:  P.  S,  King  &  Son 

1912 


1^S:£ 


Copyright,  1912 

By 

The  Faculty  of  Political  Science  of 

Columbia  University,  New  York 


22o8 


7X 


TO 
MY   FATHER  AND  MOTHER 

WHO    HAVE   EVER   BEEN   GENEROUS   AND    ATTENTIVE    IN    THE 

EDUCATION  OF  THEIR  CHILDREN  FOR  PUBLIC  SERVICE 

THIS  MONOGRAPH,  THE  FIRST   FRUIT  OF 

TWENTY  YEARS  OF  SCHOOLING 

IS  GRATEFULLY  AND  AFFECTIONATELY  DEDICATED 


PREFACE 


The  chapters  which  are  herein  presented,  with  the 
exception  of  the  concluding  one,  were  originally  in- 
tended to  form  an  introductory  part  of  a  treatise  on 
alien  claims  against  China,  which  is  still  in  the  course  of 
preparation.  After  they  were  written,  however,  it  was 
found  that  they  constituted,  both  as  to  the  substance 
which  they  embodied  and  as  to  the  arrangement  of  the 
topics  which  they  included,  a  fairly  complete  whole  in 
themselves.  It  was  therefore  decided,  with  the  concur- 
rence of  a  number  of  professors  in  the  Faculty  of  Polit- 
ical Science  at  Columbia  University,  that  they  might 
advantageously  be  left  to  stand  in  a  separate  form  by 
themselves  ;  hence  the  appearance  of  the  present  volume. 

In  deciding  upon  this  plan  of  publication  I  was  also 
influenced  by  a  consideration  of  the  timeliness  of  the 
subject  to  which  the  studies  embraced  in  this  volume 
are  devoted.  Commerce,  religion,  travel  and  other  inter- 
ests are  drawing  increasing  numbers  of  foreigners  into 
China,  and  the  question  of  their  precise  status,  while  re- 
siding or  being  within  her  territory,  becomes  to-day, 
not  only  one  of  enhanced  interest,  but  one  of  growing 
practical  importance.  The  multifarious  and  sometimes 
complex  problems  which  arise  out  of  their  intercourse 
with  the  Chinese  people  depend  for  their  prompt  solu- 
tion primarily  upon  an  accurate  knowledge  of  the  rights, 
privileges  and  immunities  which  they  are  entitled  to  en- 
joy under  laws  and  treaties,  and  of  the  limitations  and  re- 
129]  7 


8  PREFACE  [130 

strictions,  arising  from  the  same  sources  of  sanction, 
upon  such  rights,  privileges  and  immunities.  The  need 
of  this  knowledge  is  all  the  more  pressing  by  reason  of 
the  fact  that  foreigners  in  China  enjoy  judicial  extra- 
territoriality. Although  in  recent  years  several  mono- 
graphs have  appeared  which  treat  of  the  position,  (gen- 
erally a  few  phases  of  it),  of  foreigners  of  a  particular 
nationality  in  China,  I  am  not  aware  of  any  work  in 
existence  which  considers  the  status  of  aliens  in  China 
as  a  class,  or  from  the  Chinese  point  of  view.  The  pres- 
ent treatise  is  an  attempt  in  these  directions. 

My  profound  thanks  are  due,  first  of  all,  to  John 
Bassett  Moore,  Hamilton  Fish  Professor  of  Inter- 
national Law  and  Diplomacy  in  Columbia  University, 
for  his  sound  instruction  in  the  principles  of  the  law  of 
nations,  for  his  inspiring  direction  in  the  preparation  of 
this  work  and  for  reading  over  the  manuscripts  and  sug- 
gesting invaluable  corrections,  which  were  without  ex- 
ception accepted  and  incorporated  in  the  work.  I  am 
also  deeply  indebted  to  Professor  Charles  A.  Beard,  of 
Columbia  University,  who  very  kindly  accepted  charge 
of  the  printing  of  this  monograph  after  I  sailed  from 
New  York  for  Peking,  and  who  made  arrangements  for 
the  verification  of  the  references,  the  preparation  of  the 
index  and  the  reading  of  the  proof  sheets. 

V.  K.  Wellington  Koo. 

London,  April  16,  1912. 


t\ 


CONTENTS 


PART  I 


THE  PRE-CONVENTIONAL  PERIOD   (A.  D.   120-1842; 

Chapter  page 

1.     History  OF  THE  Entrance  OF  Foreigners  INTO  China  .  .       .  13 

II.     Privileges  AND  Protection  OF  Aliens 18 

III.    Adoption  of  the  "Closed  door"  Policy 21 

*S,                  IV.     A  Survey  of  the  Effects  of  the  New  Policy 32 

V.     Organization,    Regulation    and    Protection    of    Foreign 

Trade 34 

Q\                   VI.     Legal  Control  over  Foreigners 46 

•^                  VII.     Aliens  Subject  to  Chinese  Criminal  Jurisdiction 49 


^  PART  II 

^  THE  CONVENTIONAL  PERIOD   (SINCE   1842) 

VIIl.    The  New  regime 59 

IX.     Origin  of  the  Extraterritorial  Jurisdiction  in  China  ...      62 

1.  Essence  of  judicial  extraterritoriality  and  its  intricate  genesis 
in  China 62 

2.  General  attitude  of  defiance  on  the  part  of  aliens  in  early  days 
towards  Chinese  authority 63 

3.  British  resistance  to  the  exercise  of  jurisdiction  over  them  in 
criminal  cases 68 

4.  Examination  of  the  reasons  assigned  for  the  resistance    ...       79 

5.  Establishment  of  a  British  court  of  justice  for  China  in  1833.      95 

6.  Proposed  British  legislation  of  1838 112 

7.  Concession    of  extraterritorial   rights  to   British   subjects   at 
Nanking,  1842 133 

8.  British  legislation  and  orders  in  council  of   1843  o'^  extra- 
territorial jurisdiction  in  China 138 

9.  Caleb  Cushing's  theory  of  extraterritoriality 146 

131]  9 


10  CONTENTS  [132 

X.     Protection  Under  the  Extraterritorial  Jurisdiction  ...  166 

1.  Criminal  matters  involving  Chinese  and  aliens 166 

2.  Civil  matters  involving  Chinese  and  aliens 170 

3.  Cases  between  aliens 178 

4.  Extraterritorial  courts  in  China 179 

5.  The  law  administered  to  aliens 184 

6.  Application  of  their  own  law  advantageous  to  aliens   ....  188 
XI.     The  Extent  of  the  Extraterritorial  Jurisdiction   ....  193 

XII.     Limitations  of  the  Extraterritorial  Jurisdiction 196 

1.  Founded  on  treaty  stipulations 196 

2.  Founded  on  international  law  ....            199 

3.  Founded  on  statutes 202 

4.  Founded  on  policy 203 

5.  The  jurisdiction,  primarily  personal   .            205 

6.  The  jurisdiction,  as  to  criminal  matters,  punitive,  not  pre- 

ventive    212 

XIII.  Ports  and  Foreign  Settlements 229 

1.  Treaty  ports 229 

2.  Ports  voluntarily  opened  by  China 250 

3.  Leased  ports 252 

4.  Ports  of  call 264 

5.  The  legation  quarter  in  Peking 266 

XIV.  Travel  and  Passports 268 

XV.     The  Alien  Merchant  in  the  Interior  of  China 277 

1.  Sale  of  imported  goods  in  the  interior 277 

2.  Purchase  of  native  produce  for  shipment  to  Chinese  or  foreign 

ports 278 

3.  Treaty  limitations  upon  the  rights  of  the  alien  merchant  in 

the  interior ...  280 

4.  Conditions   under  which    the    alien    merchant   may  operate 

railways  or  mines  in  the  interior 282 

5.  The  question  of  the  right  of  the  alien  merchant  to  invest  in 

Chinese  joint-stock  companies  established  in  the  interior.  .  286 

XVI.     The  Christian  Missionary 289 

1.  Toleration  and  preaching  of  Christianity 289 

2.  Control  and  protection  of  missionaries 293 

3.  Missionaries,  as  a  rule,  equally  treated  with  other  foreigners.  309 

4.  Residence  and  property-holding  in  the  interior 315 

5.  Prosecution  of  secular  work 334 

XVII.     Protection  ok  Aliens  and  Alien  Property  in  General  .  .    .  336 

XVIIl.    Aliens  of  Non-treaty  Powers 343 

XIX.    Conclusion 350 

Topical  Index 357 


PART  I 

THE  PRE-CONVENTIONAL  PERIOD 
(A.  D.  120-1842)' 


1  During  this  period  two  treaties  of  peace,  boundary,  and  land  trade 
were  concluded  between  China  and  Russia,  viz.,  the  treaty  of  Nerchinsk, 
August  27,  1689,  and  that  of  Kiakhta,  October  21,  1727,  amended  by  the 
convention  of  October  18,  1768.  These  treaties,  however,  were  very 
limited  in  their  operation,  and  did  not  provide  any  comprehensive  sys- 
tem of  trade  intercourse  and  consular  jurisdiction  as  did  those  beginning 
with  the  treaty  of  Nanking,  August  29,  1842 ;  hence  for  the  purposes 
of  this  study,  the  year  1842  is  considered  more  suitable  to  mark  the 
commencement  of  China's  broad  treaty  relations  with  foreign  powers. 
The  French,  English,  Chinese,  Russian  and  Latin  texts  of  the  treaty 
of  1689;  the  French,  Chinese,  Russian  and  Latin  texts  of  the  treaty  of 
1727;  and  the  French  and  Russian  texts  of  the  supplementary  conven- 
tion of  1768  are  all  found  in  Treaties  between  China  and  Foreign 
States  (Shanghai,  1908),  vol.  i. 


CHAPTER  I 
History  of  the  Entrance  of  Foreigners  into  China 

Evidences  of  the  fact  abound  in  Chinese  history  that 
the  presence  of  the  alien  in  China  dates  back  to  time 
nearly  immemorial.  Embassies  from  the  neighboring 
countries;  commercial  missions  disguised  as  bearers  of 
tribute;  daring  explorers  on  land  and  at  sea;  mission- 
aries of  the  Sacred  Book  of  Buddha,  the  Koran  and  the 
Bible;  and  refugees  from  persecution — these  visited  the 
imperial  capital  or  its  outlying  provinces,  lived  there  and 
in  some  cases  died  there  in  days  as  old  as  written  records. 
Putting  aside  legendary  notices  altogether,  which  make 
mention  of  visitors  to  the  Chinese  Empire  as  far  back  as 
in  the  reign  of  Hvvangti  (2697  B.  C),  the  Hebrews,  for 
instance,  fleeing  from  persecution  in  Egypt,  began  to 
migrate  into  the  western  parts  of  the  Empire  long  before 
the  beginning  of  the  Christian  Era,  and  established  a 
colony  of  their  own,  which  still  exists  to-day  in  Kaifung 
Fu,  the  capital  of  Honan  Province.'  In  A.  D.  120,  a 
little  more  than  two  centuries  after  the  first  Chinese 
embassy  was  despatched  to  Parthia,  the  king  of  Shan,  a 
country  southwest  of  China,  sent  to  the  son  of  Heaven 
a  tribute-bearing  mission  with  musicians  and  jugglers 
from  Ta-tsin,  which  is  now  known  to  have  been  the 
Roman  Orient.^     Half  a  century  later,  in  166,  the  repre- 

'  Sir  J.  F.  Davis,  China  ("History  of  Nations'"  series,  2  vols.),  vol. 
I,  pp.  23-25. 
^  Professor  Friedrich  Hirth  summarizes  the  results  of  his  researches 
135I  13 


14  THE  STATUS  OF  ALIENS  IN  CHINA  [136 

sentatives  of  Emperor  Marcus  Aiirelius  Antoninus  ar- 
rived in  Loyang  with  ivory,  rhinoceros  horns,  and  tor- 
toise shell  as  presents  to  the  Chinese  Throne.' 

Indeed  the  Romans  would  have  opened  up  direct 
intercourse  with  China,  for  once  at  least,  much  earlier 
than  they  did  but  for  the  fact  that  their  missions  hitherto 
accredited  to  the  Chinese  Empire  had  been  persistently 
and  successfully  obstructed  in  the  progress  of  their 
journey  by  the  merchants  of  Parthia.  The  cause  of  this 
obstruction  is  not  difficult  to  explain.  The  Parthians 
had  been  the  sole  dealers  in  the  Serica  vesiis,  which  was 
either  a  silken  or  cotton  fabric,  between  its  Chinese 
producers  and  its  Roman  consumers ;  they  had,  fre- 
quently, and  under  great  hardships,  journeyed  to  China  to 
purchase  new  stock,  and  had  for  generations  reaped 
large  profits  from  the  monopoly.  If  the  Romans  should 
have  succeeded  in  establishing  direct  relations  with  China 
it  would  have  meant  to  the  Parthians  the  entrance  of 
undesirable  competition  in  their  trade,  and  perhaps  the 
ruin  of  their  lucrative  business.  As  a  matter  of  fact, 
these  apprehensions  were  unnecessary ;  for  even  the 
mission  of  166,  though  it  was  able  to  reach  the  Chinese 
capital  and  was  received  with  courtesy  and  kindness, 
failed,  as  most  attempts  of  the  kind  in  subsequent  days 
did,  to  inaugurate  definite  commercial  or  diplomatic 
relations  between  the  two  greatest  empires  in  the  world.' 

into  old  Chinese  records  in  the  following  words :  "  My  interpretation 
of  these  records  leads  to  the  conclusion  that  the  ancient  country  of 
Ta-tsin,  called  Fu-lin  during  the  Middle  Ages,  was  not  the  Roman 
Empire  with  Rome  as  its  capital,  but  merely  its  oriental  part,  viz., 
Syria,  Egypt  and  Asia  Minor;  and  Syria  in  the  first  instance."  China 
and  the  Roman  Orient  (Shanghai,  1885),  p.  6.  For  an  account  of  the 
audience  accorded  this  mission,  see  ibid.,  pp.  36-37. 

'  Ibid.,  Translations  E3,  H5,  O2,  Q36,  R21. 

*  S.  W.  Williams,  A  History  of  China  (New  York,  1901),  pp.  58-60. 


127]         ENTRANCE  OF  FOREIGNERS  INTO  CHINA  i- 

The  failure  of  the  first  Roman  embassy  in  accomplish- 
ing its  ulterior  objects,  however,  did  not  put  an  end  to 
the  influx  of  foreigners  into  the  Celestial  Kingdom. 
Though  not  disposed  to  enter  into  formal  relations  with 
distant  countries,  the  Chinese  Emperor  entertained  no 
objections  to  the  coming  of  their  subjects  into  his  realm. 
The  Parthians  continued  to  visit  China,  followed  by  the 
Greeks,  the  Persians,  the  Nestorians,  the  Buddhist  pil- 
grims, and  the  Arabs  clear  down  to  the  end  of  the  so- 
called  Dark  Ages  in  the  West.  The  great  stimulus 
which  urged  these  adventurers  to  undertake  long  jour- 
neys and  suffer  hardships  was  the  trade  in  the  natural 
and  artificial  productions  of  China  and  India,  which  had 
already  become  considerable  in  extent  and  value  by  the 
middle  of  the  ninth  century.  Abu  Zaid,  one  of  the  two 
noted  Arab  travelers  of  that  time,  speaks  in  his  narrative 
(A.  D.  877)  of  the  sack  of  the  city  of  Canfu,  then  the 
port  of  all  the  Arabian  merchants,  in  which  one  hundred 
and  twenty  thousand  Mohammedans,  Jews,  Christians, 
and  Magians,  or  Parsees  engaged  in  traffic,  were  de- 
stroyed.' 

Among  the  mediaeval  travelers  to  the  Chinese  Empire 
many  have  since  become  well  known  for  the  knowledge 
of  Central  Asia  which  their  wanderings  gave  to  Europe; 
and  particularly  of  this  class  are  the  papal  nuncios  sent 
out  from  Rome  in  the  thirteenth  century.  At  that  time 
the  irresistible  onslaught  of  the  Mongols  under  Genghis 
and  his  successors,  with  its  attendant  ravages,  was 
inspiring  terror  in  the  minds  of  the  Europeans.  Pope 
Innocent  IV,  with  a  view  to  exhorting  the  invaders  to 
be  more  humane,  prepared  a  papal  message  and  sent 
John  of  Piano  Carpini,  a  Franciscan  monk,  to  deliver  it 

^Williams,  op.  cit.,  p.  62. 


1 6  THE  STATUS  OF  ALIENS  IN  CHINA  [138 

to  the  king  of  the  Tartars  in  1246.  To  the  admonitions 
and  exhortations  of  the  Bishop  of  Rome,  the  Mongol 
king  made  a  terse,  vigorous  and  arrogant  reply.  One 
passage  of  that  document  reads : 

The  series  of  your  letters  contained  that  we  ought  to  be  bap- 
tized and  to  become  Christians;  we  briefly  reply,  that  we  do 
not  understand  why  we  ought  to  do  so.  As  to  what  is  men- 
tioned in  your  letters,  that  you  wonder  at  the  slaughter  of 
men,  and  chiefly  of  Christians,  especially  Hungarians,  Poles, 
and  Moravians,  we  shortly  answer,  that  this  too  we  do  not 
understand.  Nevertheless,  lest  we  should  seem  to  pass  it 
over  in  silence,  we  think  proper  to  reply  as  follows:  It  is  be- 
cause they  have  not  obeyed  the  precept  of  God  and  of  Gen- 
ghis khan,  and,  holding  bad  counsel,  have  slain  our  messen- 
gers; '  wherefore  God  has  ordered  them  to  be  destroyed,  and 
delivered  them  into  our  hands.  But  if  God  had  not  done  it, 
what  could  man  have  done  to  man?  But  you,  inhabitants  of 
the  West,  believe  that  you  only  are  Christians,  and  despise 
others;  but  how  do  you  know  on  whom  he  may  choose  to  be- 
stow his  favor?  We  adore  God,  and,  in  his  strength,  will 
overwhelm  the  whole  earth  from  the  east  to  the  west.  But  if 
we  men  were  not  strengthened  by  God,  what  could  we  do?* 

Nearly  twenty  years  later,  in  1274,  Pope  Gregory  X 
sent  another  mission  to  the  Chinese  Emperor,  composed 
of  the  two  Polo  brothers,  Matteo  and  Nicolo,  and  ac- 
companied by  Marco  Polo,  the  latter's  son.  However, 
both  these  missions  failed  in  their  object,  namely,  the 
promotion  of  the  Roman  Catholic  faith  in  China.  For 
this  reason  a  third  embassy  was  sent  out  by  Pope  Nich- 

*  Allusion  is  here  made  to  Tartar  ambassadors,  whom  the  Russians 
murdered  before  the  battle  of  Kalka. 

2  Murray,  Marco  Polo,  p.  49;  passage  quoted  and  notes  given  in 
Williams,  The  Middle  Kingdom  (3d  ed.,  2  vols.,  New  York,  1851), 
vol.  2,  p.  425. 


139]         ENTRANCE  OF  FOREIGNERS  INTO  CHINA  17 

olas  IV  in  1288  with  John  De  Corvino  at  its  head,  and 
this  time  the  wishes  of  the  pope  were  fully  carried  out 
in  Peking-.  To  complete  the  list  of  noted  travelers  in 
the  Celestial  Empire,  there  must  be  mentioned  the  names 
of  Rubruk,  who  entered  the  boundaries  of  the  Empire 
in  1253  ;  Friar  Odoric,  who  made  a  tour  in  China  in  the 
first  part  of  the  fourteenth  century,  and  Ibn  Batuta,  the 
Moor,  who  visited  it  about  1342. 


CHAPTER  II 

Privileges  and  Protection  of  Aliens 

It  is  thus  seen  that  throughout  the  ancient  and  middle 
ages  there  was  ahnost  a  continuous  flow  inward  and 
outward  of  foreign  subjects  in  China.  The  question  arises, 
What  treatment  did  they  receive  from  the  Chinese  Gov- 
ernment? From  the  records  of  what  they  did  in  China 
and  from  the  narratives  which  they  wrote  of  their  ex- 
periences in  the  course  of  their  travel  therein,  it  appears 
that  they  enjoyed  many  privileges  and  ample  protection. 
In  the  first  place,  during  this  period  there  was  evidently 
no  policy  of  seclusion  and  confinement  in  China :  her 
doors,  both  on  her  land  frontiers  and  her  coasts,  were 
kept  widely  open  to  receive  whoever  chose  to  enter. 
Travelers  who  went  to  China  by  water,  such  as  Friar 
Odoric  ( 1 286-1 331)  and  Ibn  Batuta  (1342),  and  those 
who  like  Carpini  journeyed  on  land,  appear  to  have  en- 
countered no  difificulty  at  all  in  gaining  admission  at  her 
portals.  Nor  were  there  laws  in  existence  restricting 
the  free  circulation  of  foreigners  within  the  Empire. 
Alien  visitors  who  made  tours  of  the  country  as  Odoric 
did,  visiting  one  city  after  another,  hardly  faced  any 
official  obstruction.  It  seems  to  be  true  that  a  certain 
kind  of  passport  was  necessary  to  travelers  in  the  coun- 
try, but,  as  will  be  seen  later,  these  were  designed  to 
facilitate  and  protect,  rather  than  to  hinder  and  restrict, 
them  in  their  travel.  Similarly,  foreign  merchants  must 
have  enjoyed  the  same  freedom  in  entering  the  country ; 
for  this  alone  could  account  for  the  prosperity  of  com- 
18  [140 


141  ]       PRIVILEGES  AND  PROTECTION  OF  ALIENS  ig 

merce  in  the  Provinces  of  Kwangtung,  Chekiang,  and 
Fukien  during  the  period  under  consideration.  Foreign 
trade  had  so  developed,  even  in  990  B.  C,  as  to  make  it 
worth  while  to  levy  a  duty  on  imported  goods  in  that 
year.  "  During  the  Tang  dynasty  (A.  D.  618-907)  a 
regular  market  was  opened  at  Canton  and  an  officer  was 
sent  thither  to  collect  the  government  dues  on  sales."' 

There  being  no  permanent  diplomatic  officers  accred- 
ited to  the  Chinese  Empire  at  that  time,  except,  possi- 
bly, the  papal  legate  John  de  Marignolli,  who  as  the 
representative  of  Pope  Benedict  XII,  resided  in  Peking 
for  four  years  from  1338,  the  protection  of  the  aliens  in 
the  country  was  left  entirely  to  the  Emperor.  Those 
who  went  to  China  then  were  allowed  to  travel  or  reside 
therein,  not  by  right,  but  simply  on  sufferance,  and 
could  have  been  easily  subjected  to  restrictions  and  even 
discriminations  without  thereby  giving  ground  for  a 
rightful  protest.  But  the  alien  merchants  and  travelers 
in  China  of  that  time  implicitly  confided  to  the  Emperor 
the  security  of  their  lives  and  property  within  his  do- 
minion ;  and  it  may  now  be  said  that  their  confidence 
was  not  at  all  misplaced.  The  Imperial  Government 
placed  the  aliens  practically  on  the  same  footing  as  its 
own  subjects :  it  opened  to  them  public  employments 
and  extended  to  them  the  fullest  protection.  Olopum, 
one  of  the  Nestorians  who  entered  China  in  the  Tang 
dynasty,  was  raised  to  the  rank  of  high  priest  and 
national  protector  by  Emperor  Kautsung.  Marco  Polo, 
though  a  Venetian  by  birth  and  allegiance,  was  appointed 
to  the  office  of  Prefect  of  Yangchow,  which  he  held  for 
three  years.  John  de  Corvino,  a  Romish  missionary, 
was  given  an  imperial  audience  and  allowed  to  build  a 

*  R.  K.  Douglas,  Europe  and  the  Far  East  (Cambridge  University- 
Press,  1904),  p.  2. 


20  THE  STATUS  OF  ALIENS  IN  CHINA  [142 

Catholic  church  with  a  steeple  and  bells,  preach  the 
gospel,  and  baptize,  even  in  the  capital  of  the  Empire. 
In  their  travel  from  one  part  to  another  in  the  country 
the  same  passports  insuring  the  protection  of  the  local 
authorities  were  issued  to  foreigners  and  natives.  A 
passage  found  in  the  narratives  of  Ibn  Wahab  about  his 
experiences  in  China  shows  at  once  the  measure  of  pro- 
tection taken  in  the  Tang  dynasty  in  behalf  of  travelers 
and  the  want  of  discrimination  against  aliens.  The  Arab 
adventurer  observes  : 

If  a  man  would  travel  from  one  province  to  another,  he  must 
take  two  passes  with  him,  one  from  the  governor,  the  other 
from  the  ennuch  (or  lieutenant).  The  governor's  pass  per- 
mits him  to  set  out  on  his  journey  and  contains  the  names  of 
the  traveller  and  those  also  of  his  company,  also  the  ages  of 
the  one  and  the  other  and  the  clan  to  which  he  belongs.  For 
every  traveller  in  China,  whether  a  native  or  an  Arab,  or 
other  foreigner,  cannot  avoid  carrying  a  paper  with  him  con- 
taining everything  by  which  he  can  be  verified.  The  ennuch's 
pass  specifies  the  quantities  of  money  or  goods  which  the 
traveller  and  those  with  him  take  along;  this  is  done  for  the 
information  of  officers  at  the  frontier  places  where  these  two 
passes  are  examined.  Whenever  a  traveller  arrives  at  any  of 
them,  it  is  registered  that  such  a  one,  son  of  such  a  one,  of 
such  a  calling,  passed  here  on  such  a  day,  month,  and  year, 
having  such  things  with  him.  The  government  resorts  to  this 
means  to  prevent  danger  to  travellers  in  their  money  or 
goods;  for  should  one  suffer  loss  or  die,  everything  about  him 
is  immediately  known  and  he  himself  or  his  heirs  after  his 
death  receive  whatever  is  his.' 

'  Reinaud,  Relation  des  voyages,  fails  par  les  Arabes  et  les  Persons 
dans  I'Inde  et  a  la  Chine  dans  le  IX me  Steele  de  I' ere  Chretienne  (2 
vols.,  Paris,  1845),  Tome  i,  p.  41  ;  quoted  by  Williams,  A  History  of 
China,  p.  7^. 


CHAPTER  III 
Adoption  of  the  "Closed-door"  Policy 

With  the  beginning  of  the  sixteenth  century  a  marked 
change  took  place  in  the  attitude  of  the  Chinese  Govern- 
ment toward  the  foreigners  within  its  territory.  Instead 
of  continuing  to  treat  them  liberally,  the  Emperor,  from 
that  time  down  to  the  middle  of  the  last  century,  pur- 
sued, as  a  rule,  increasingly  vigorous  measures  of  sur- 
veillance, restriction,  and,  to  a  large  extent,  exclusion  in 
his  dealings  with  the  alien  merchants  and  missionaries 
in  his  empire.  However,  when  the  circumstances  and 
conditions  of  the  time  are  examined  into  it  will  be  found 
that  the  adoption  of  this  new  and  apparently  retrogres- 
sive policy  on  the  part  of  China  was  neither  unnatural 
nor  unreasonable. 

First  of  all,  reports  of  the  conquest  of  the  East  Indies 
and  of  the  forcible  occupation  of  parts  of  India  and  the 
Malay  Peninsula  by  Portuguese  adventurers  at  the  com- 
mencement of  the  sixteenth  century,  as  an  immediate 
outcome  of  the  discovery  by  Vasco  da  Gama  of  the 
maritime  route  from  Europe  to  Eastern  Asia  around  the 
Cape  of  Good  Hope,  naturally  awakened  suspicions  in 
the  minds  of  Chinese  rulers  as  to  the  ulterior  motives  of 
those  foreigners  who  were  flocking  in  increasing  num- 
bers to  the  shores  of  their  dominions.  The  report  from 
the  Sultan  of  Malacca  that  the  Portuguese  had  by  force 
of  arms  captured  his  island-territory  in  151 1  further 
alarmed  the  Emperor,  who,  influenced  by  a  subject  of 
143]  21 


22  THE  STATUS  OF  ALIENS  IN  CHINA  [144 

the  Sultan,  at  once  ordered  steps  to  be  taken  to  check 
the  advance  of  the  first  Portuguese  mission  to  China, 
which  was  then  on  its  way  to  Peking,  and  appointed  a 
court  to  examine  its  character.  Satisfactory  credentials 
were  demanded  of  Thome  Perez,  the  chief  emissary,  and 
his  colleagues,  but  they  failed  to  produce  them ;  there- 
upon they  "  were  adjudged  to  be  spies  and  sent  back  to 
Canton  to  be  detained  till  Malacca  was  restored,"  In 
September,  1523,  Perez  and  others  died  under  circum- 
stances not  yet  definitely  ascertained.'  The  aggressions 
of  the  Spanish  in  the  Philippines  in  1543  were  likewise 
known  to  the  Chinese ;  and  undoubtedly  it  was  a  sense 
of  fear  inspired  by  this  knowledge  that  such  deeds  might 
be  duplicated  on  their  own  coast  which  led  them  per- 
emptorily to  refuse  the  admission  of  a  party  of  Spanish 
Augustine  friars  in  1575  and  again  in  1579,  and  caused 
them  to  imprison  at  Canton  in  1580  Martin  Ignatius,  the 
envoy  of  Philip  II  of  Spain. 

In  this  connection  it  is  to  be  remembered  also  that 
toward  the  end  of  the  sixteenth  and  during  the  first  part 
of  the  seventeenth  century  the  internal  conditions  of 
China  were  such  as  to  make  it  very  desirable  to  raise  a 
bolt  across  her  doors.  The  life  of  the  Ming  dynasty 
under  its  effete  and  supine  rulers  was  then  already  at  its 

*  Of  the  precise  circumstances  under  which  these  Portuguese  emis- 
saries died,  authoritative  writers  on  China  give  varying  versions.  To 
the  clause  quoted  above  from  A  Short  History  of  China,  p.  77,  Wil- 
liams adds  this  statement :  "  This  not  being  done,  he  and  others  suffered 
death  in  September,  1523;  other  accounts  lead  to  the  inference  that  he 
died  in  prison."  Davis,  in  China  and  the  Chinese,  vol.  i,  p.  16,  says : 
"  Perez,  on  his  arrival  [at  Canton]  was  robbed  of  his  property,  thrown 
into  prison,  and  ultimately,  it  is  supposed,  put  to  death."  Douglas,  in 
Europe  and  the  Far  East,  p.  11,  appears,  however,  to  be  quite  sure  of 
the  point,  as  he  writes:  "These  [credentials]  having  been  found  to  be 
faulty,  Perez  was  thrown  into  prison  and,  together  with  other  Por- 
tuguese offenders,  was  finally  beheaded." 


j.rl  THE  " CLOSED-DOOR"  POLICY  23 

ebb ;  the  spirit  of  rebellion  was  rife  in  most  parts  of  the 
Empire;  the  Manchus  were  harassing  the  northern 
provinces  ;  in  short,  the  country  was  then  in  a  hopeless 
state  of  defence  against  the  advent  of  a  foreign  foe,  as 
indeed  she  always  had  been  in  every  previous  period  of 
her  transition  from  one  dynastic  rule  to  another.  It 
was  therefore  natural  that  the  rulers  of  the  time  should 
be  peculiarly  sensitive  to  any  appearances  of  foreign  ag- 
gression, and  keenly  apprehensive  lest  the  strangers 
from  the  West  might  take  advantage  of  China's  weak- 
ness and  resort  to  schemes  of  occupation  and  conquest. 

But  the  apprehensions  of  attack  by  designing  west- 
erners from  without,  aggravated  as  they  were  by  the 
unsettled  conditions  within,  were  not  the  only  reasons 
for  the  enforcement  of  a  stringent  policy  toward  aliens 
in  the  country.  There  was  a  more  cogent  argument; 
there  was  a  necessity  for  the  changed  attitude.  The 
atrocious  conduct  of  the  Portuguese  and  others  ap- 
peared to  be  a  just  cause  for  taking  precautions  to  pre- 
vent their  gradual  usurpation  of  sovereignty  over  the 
southern  provinces. 

As  early  as  1506  the  foreign  traders  began  to  be  un- 
scrupulous and  resort  to  lawlessness  for  the  purpose  of 
gaining  admission  into  China.     A  Chinese  w^ork  records  : 

During  the  reign  of  Chingtih  (1506),  foreigners  from  the 
West,  called  Fah-lan-ki  (or  Franks),  who  said  they  had 
tribute,  abruptly  entered  the  Bogue,  and  by  their  tremend- 
ously loud  guns,  shook  the  place  far  and  near.  This  was  re- 
ported at  court,  and  an  order  returned  to  drive  them  away 
immediately,  and  stop  the  trade." 

In   1 5 18,  only  shortly  after  his  brother  Ferdinand  suc- 
1  Quoted  by  Williams  in  The  Middle  Kingdom,  vol.  2,  p.  432. 


24  THE  STATUS  OF  ALIENS  IN  CHINA  [146 

ceeded  with  difficulty  in  obtaining  the  permission  to 
trade  at  Canton,  Simon  Andrada  seized  the  island  of 
Shong-Chuan  (also  called  St.  John's)  with  his  squadron, 
erected  a  fort  there,  committed  acts  of  piracy  on  the 
native  trading-vessels,  and  engaged  in  open  hostilities 
with  a  Chinese  naval  force,  which  however,  succeeded 
finally  in  dislodging  him  from  his  ill-gotten  stronghold.' 
Twenty  years  later,  in  1537,  the  Portuguese  again  clan- 
destinely took  possession  of  several  islands  in  the  vicinity 
of  Canton.  "  Macao  was  commenced  under  the  pretext 
of  erecting  sheds  for  drying  goods  introduced  under  the 
appellation  of  tribute,  and  alleged  to  have  been  damaged 
in  a  storm."  ^  At  Ningpo  and  Chinchow  where  they 
established  a  trading  factory  in  15 18,  their  presence  was 
hardly  less  objectionable  and  they  suffered  accordingly. 
One  sinologue  writes : 

There  the  conduct  of  the  foreigrners  had  been  infamous.  They 
outrag-ed  every  law  and  set  the  feelings  of  the  people  at  defi- 
ance. They  refused  to  submit  to  the  native  authorities,  and 
on  one  occasion  in  revenge  for  one  of  their  number  having 
been  cheated  by  a  Chinaman  they  sent  an  armed  band  into  a 
neighboring  village  and  plundered  the  natives,  carrying  off  a 
number  of  women  and  young  girls.  By  such  deeds  they 
brought  down  on  themselves  the  vengeance  of  the  people, 
who  rose  and  massacred  eight  hundred  of  the  offenders  and 
burnt  thirty-five  of  their  ships.  At  Chinchow  in  the  province 
of  Fukien  they  invited  disaster  by  similar  misconduct.' 

The  subjects  of  the  king  of  Portugual  were,  however, 

'  Davis,  China,  vol.  i,  p.  30. 

'  Williams,  A  History  of  China,  p.  76.  The  subsequent  dispute  be- 
tween the  countries  as  to  which  is  the  real  sovereign  over  the  territory- 
has  been  a  subject  of  perennial  negotiations,  and  to-day  it  still  awaits  a 
final  settlement. 

'Douglas,  Europe  and  the  Far  East,  p.  11. 


147]  THE  "CLOSED-DOOR"  POLICY  25 

not  the  only  disturbers  of  peace  and  order  in  the 
Empire.  The  Dutch  were  scarcely  less  violent  in  mak- 
ing their  debut  on  Chinese  territory.  They  commenced 
their  intercourse  with  China  by  the  forcible  occupation 
of  the  Pescadores,  coercing  the  residents  there  to  build 
forts  for  them,  and  expelling  them  from  the  islands  when 
they  refused  to  obey  the  order.  They  evacuated  their 
new  possessions  only  when  they  saw  that  they  stood  a 
very  slim  chance  of  overcoming  the  5000  Chinese  troops 
that  were  approaching  to  dislodge  them  ;  and  then  they 
retired  only  to  seize  Formosa,  their  occupation  of  which 
gave  occasion  in  1662  for  a  war  with  the  Chinese,  which 
ended  with  their  definitive  expulsion  from  it.  The  violent 
entry  of  the  Dutch  on  Chinese  territory  was  evidently 
still  remembered  in  1655  when  the  Dutch  East  India 
Company,  having  found  forcible  measures  not  to  be  ad- 
vancing their  commercial  aspirations,  resorted  to  the 
humbler  means  of  sending  a  mission  to  Peking  to  petition 
for  the  liberty  to  trade  ;  and  after  obsequiously  perform- 
ing as  ordered,  every  kind  of  humiliating  ceremony  and 
homage  before  the  Emperor,  the  Dutch  representatives 
obtained  nothing  but  the  meagre  privilege  of  sending 
an  embassy  with  four  ships  of  trade  once  in  eight  years. 
The  two  subsequent  missions,  in  1664  and  1795  respec- 
tively, brought  forth  no  better  results. 

Ruder  still  was  the  manner  in  which  the  Englishman 
was  introduced  to  the  Chinese  nation.  In  the  summer 
of  1637  Captain  Weddel,  at  command  of  a  fleet  of  five 
ships  belonging  to  the  British  East  India  Company,  ap- 
peared before  Macao  ;  but  meeting  with  nonchalance,  if 
not  active  obstruction,  at  the  hands  of  the  Portuguese, 
he  sailed  up  to  Canton  and  arrived  in  the  neighborhood  of 
the  forts.  The  authorities  at  Canton  were  about  to  ne- 
gotiate with  the  English  Captain  as  to  the  conferring  of 


26  THE  STATUS  OF  ALIENS  IN  CHINA  [148 

commercial  privilege  on  his  compatriots  when  their 
minds  succumbed  to  the  evil  influences  of  the  Portu- 
guese, who  "  so  beslandered  them  [the  English]  to  the 
Chinese,  reporting  them  to  be  rogues,  thieves,  beggars, 
and  what  not,  that  they  became  very  jealous  of  the  real 
meaning  of  the  English."'  Accordingly,  the  Bogue 
forts  fired  upon  one  of  the  barges  in  search  of  a  water- 
boat,  in  order  to  compel  the  departure  of  the  English 
vessels.  But  the  latter,  taking  umbrage  at  the  conduct 
of  the  Chinese,  displayed  their  bloody  ensigns,  attacked 
the  forts  with  their  broadsides,  and  in  a  few  hours  com- 
pelled the  Chinese  garrison  to  take  flight.  About  one 
hundred  men  from  the  fleet  landed,  took  possession  of 
the  forts,  and  hoisted  the  British  colors.  They  also 
seized  the  ordnance  and  captured  two  Chinese  junks. 
In  the  face  of  foj'-ce  ma/eztr  the  authorities  at  Canton,  of 
course,  sued  for  peace,  and  the  English  ships  were  sup- 
plied with  cargoes  after  they  restored  the  captured  guns 
and  vessels  to  the  rightful  owners.  But  no  further  trade 
was  carried  on  by  the  English  at  Canton  until  1684; 
and  though  in  the  meantime  several  attempts  were  made 
at  Amoy,  Ningpo,  and  Chusan,  they  resulted  in  great 
losses  by  reason  of  the  heavy  tolls  levied  on  the  privilege 
by  the  local  authorities. 

Being  thus  already  suspicious  of  the  designs  of  the 
aggressive  westerners  in  general,  and  highly  dissatisfied 
with  their  manner  of  conducting  intercourse  with  them, 
the  Chinese  peo])le  had  yet  another  reason  for  consider- 
ing the  presence  of  the  foreign  traders  in  their  com- 
munity as  undesirable.  The  bloody  contests  of  mercan- 
tile avarice,  the  conspiracy  and  intrigue,  to  which  the 
Portuguese,  the  Dutch  and  the  English  did  not  blush  to 

'  Quoted  by  Davis  in  Chhia,  vol.  i,  pp.  49-50. 


149]  THE  "CLOSED-DOOR"  POLICY  2/ 

resort  for  the  purpose  of  excluding  one  another  and 
thereby  securing  a  monoply  of  trade,  tended  also  to 
breed  a  contempt  in  the  minds  of  the  Chinese  rulers  for 
foreign  commerce  and  for  those  who  were  thus  attempt- 
ing to  promote  it.  Allusion  has  already  been  made 
heretofore  to  the  misrepresentations  which  were  made 
by  the  Portuguese  before  the  Chinese  authorities  at 
Canton  in  1637  as  to  the  character  and  motives  of  the 
British,  and  which  resulted  in  a  clash  of  the  forces  of  the 
two  countries  then  altogether  unacquainted  with  each 
other ;  but  this  was  not  the  only  case  that  occurred.  In 
1619  the  English  and  Dutch  Companies  entered  into  a 
strange  alliance  of  defence,  "  arranged  after  much  diplo- 
matic negotiation  on  the  part  of  their  government,"'  for 
the  purpose  of  forcing  the  Chinese  to  trade  with  them 
and  them  alone.  Article  10  of  the  supplementary  con- 
vention provided  : 

Touching  the  question  where  and  in  what  place  ships  of  de- 
fence shall  be  first  employed,  .  .  .  the  defence  shall  be  em- 
ployed for  the  gaining  of  the  trade  to  China.  And  to  that  end 
the  fleet  shall  be  sent  to  the  Philippines,  there  to  hinder  and 
divert  the  Chinese  that  tjiey  shall  not  traffic  with  any  others 
but  with  us.^ 

"But  the  Dutch,  after  fortifying  the  Pescadores  with  the 
aid  of  the  allied  fleets,  appropriated  the  trade  to  them- 
selves, regardless  of  the  protests  of  the  agents  of  the 
English  Company  at  Batavia.^  "  Three  years  after  the 
formation  of  this  alliance  the  Dutch  appeared  off  Macao 

'  A.  J.  Sargent,  Anglo-CJiinese  Commerce  and  Diplomacy   (Oxford, 
1907),  P-  3- 
"  Quoted  in  ibid. 
»  Ibid. 


28  THE  STATUS  OF  ALIENS  IN  CHINA  [150 

with  a  fleet  of  seventeen  vessels  carrying  their  national 
colors.  The  Portuo^uese  at  once  attacked  them  and  in- 
flicted upon  them  the  loss  of  their  admiral  and  three 
hundred  men.  The  defeated  squadron  withdrew  and  the 
Portuguese  trade  interests  were  thus  successfully  pro- 
tected for  the  time  being. 

These  examples  perhaps  suffice  to  show^  that  the  con- 
duct of  the  alien  traders  in  China  during  the  sixteenth 
and  seventeenth  centuries  was  far  from  being  such  as  to 
make  a  favorable  impression  on  the  Chinese  Government 
or  to  convince  it  of  the  desirability  of  maintaining  for- 
eign commercial  intercourse.  It  is,  therefore,  not  sur- 
prising that  as  time  went  on  China  began  to  restrict 
more  and  more  the  conditions  under  which  trade  might 
be  prosecuted  ;  that  she  gradually  turned  a  deaf  ear  to 
the  repeated  petitions,  presented  by  imposing  embassies, 
for  an  extension  of  the  trading  privileges ;  that  by  the 
middle  of  the  eighteenth  century  Amoy  and  Ningpo 
w^ere  closed  to  commerce  and  the  liberty  to  trade  was 
confined  to  the  single  port  of  Canton ;  and  that  even  the 
people,  who  were  always  conscious  of  the  benefits  of 
international  commerce  and  desirous  of  promoting  it  in 
spite  of  the  strong  disinclination  of  their  rulers  toward 
extensive  trading,  became  finally  willing  and  glad  to 
abide  by  the  imperial  policy  of  non-intercourse,  and 
thereby  forego  their  gains  from  unlimited  foreign  trade. 

There  was,  however,  yet  another  chain  of  circumstances 
which,  though  quite  different  in  character  from  the  un- 
satisfactory conditions  born  of  foreign  commerce  along 
the  coasts,  equally  necessitated  the  pursuance  of  a  more 
restrictive  policy  in  the  treatment  of  aliens.  These  were 
the  circumstances  developed  by  the  early  complete  tol- 
eration of  Christian  evangelization  by  foreign  mission- 
aries  throughout  the  empire.     For  instance,  their  eleva- 


I^l]  THE  "CLOSED-DOOR"  POLICY  29 

tion  to  high  rank  tended  to  make  the  Catholic  priests 
self-conscious,  ostentatious  and  arrogant,  thereby  arous- 
ing not  only  jealousy  but  often  deep  animosity  against 
them  in  the  minds  of  Chinese  officials.  Even  Peking 
was  not  spared  the  experience  of  friction  between  these 
two  classes  of  servants  of  the  Chinese  Government, 
Adam  Schaal,  a  distinguished  German  Jesuit,  who  was 
appointed  president  of  the  Board  of  Astronomy  by 
Emperor  Shunchi  and  was  his  favorite  minister,  was 
promptly  impeached  on  the  accession  of  Emperor 
Canghi  on  the  ground  that  he  and  his  associates  were 
seducers  announcing  to  the  people  "  a  false  and  perni- 
cious doctrine  ;  "  and  accordingly  they  were  all  banished 
to  Canton,  where  Schaal  died  in  prison  in  1665. 

But  the  dissensions  among  the  various  orders  of 
Catholic  missionaries  were  far  more  dangerous  to  the 
well-being  of  the  state,  for  they  tended  to  weaken  the 
authority  of  the  Emperor  over  his  territory  and  his 
subjects.  Matteo  Ricci,  a  sensible  and  broad-minded 
Jesuit,  who  arrived  in  China  in  1582,  considered  ancestral 
worship  as  a  civil  rite  and  allowed  Chinese  Christians  to 
continue  observing  it ;  and  the  whole  Jesuit  order  upheld 
his  views.  Their  opponents,  the  Dominicans  and  Fran- 
ciscans, took  exception  to  this  opinion  and  considered 
ancestral  worship  as  idolatrous.  Another  line  of  cleavage 
between  the  orders  formed  on  the  meaning  of  the  word 
Thien  or  Heaven  in  Chinese  ;  the  Jesuits  interpreting  it 
to  mean  the  true  God,  but  their  opponents  consider- 
ing it  to  denote  only  the  material  universe  devoid  of  all 
holiness.  The  disputes  were  referred  to  the  Bishop  of 
Rome.  Innocent  X  condemned  the  Jesuit  views  but 
Alexander  VII  later  approved  them.  \Mien  Clement  XI 
ascended  to  the  headship  of  the  Catholic  Church  he  took 
steps    to    enforce   his    views,   which    were    those    of    the 


30  THE  STATUS  OF  ALIENS  IN  CHINA  [152 

Dominicans  and  Franciscans.  He  interdicted  the  wor- 
ship of  either  ancestors  or  Thien,  and  through  his 
representative  in  China  enjoined  the  Chinese  Cathohcs 
not  to  disobey  his  decree.  Emperor  Kanghi,  who  in 
1700  had  declared  in  an  edict  that  Thien  meant  the  true 
God  and  that  ancestral  worship  was  a  civil  institution, 
taking  offence  at  this  invasion  of  his  sovereign  power, 
issued  in  retaliation  an  edict,  tolerating  those  who 
preached  the  doctrine  of  Ricci  but  declaring  his  resolu- 
tion to  persecute  those  who  followed  the  opinions  of 
Maigrot,  the  original  propounder  of  the  Dominican  and 
Franciscan  views.  From  that  time  on  Christian  mis- 
sionaries fell  rapidly  into  disfavor  with  the  Throne;  until 
in  1723  Emperor  Yung  Chung  in  an  edict  denounced  all 
of  them,  and  in  1737  Emperor  Kienlung,  conscious  of 
the  fact  that  the  mischievous  priests  were  laboring  in 
secret  to  subvert  his  authority  over  his  own  subjects, 
and  perhaps  recalling  at  the  same  time  that  the  leader 
and  organizer  of  the  most  inveterate  anti-Manchu  party, 
which  seized  Fukien  and  Formosa  and  defied  the  Man- 
chu  rulers  at  Peking  for  decades  after  they  had  ascended 
the  throne  of  China  was  a  Catholic,  ordered  the 
vigorous  persecution  of  Christians  and  Christian  mis- 
sionaries everywhere  except  Peking.  The  decree  was 
so  loyally  executed  by  the  provincial  authorities  that  by 
1810  there  were  only  29  European  priests  left  in  all 
China,  with  about  200,000  converts.' 

Thus  it  seems  clear  that  the  policy  of  non-intercourse, 
adopted  at  the  beginning  of  the  modern  era  and  en- 
forced with  increasing  vigor  in  the  following  three  cen- 
turies, was  but  an  outcome  of  the  unsatisfactory  condi- 

*  Davis,  China,  vol.  i,  pp.  37-41  ;  Douglas,  Europe  and  the  Far  East, 
pp.  13-19. 


153]  THE  "  CLOSED-DOOR"  POLICY  31 

tions  bred  by  foreign  intercourse  in  its  commercial 
and  religious  aspects  during  that  period.  It  was  not 
espoused  and  pursued  by  China  without  cause  or  reason. 
As  viewed  by  her  rulers  of  the  time,  it  was  at  once  a 
wise  and  necessary  measure  :  it  was  intended  to  be  both 
a  remedy  for  the  ills  which  foreign  trade  and  foreign 
religion  had  already  produced  on  their  territory  and  on 
their  subjects  and  a  preventive  against  the  dangers  to  the 
safety  of  their  nation  which  appeared  still  latent  in  them- 


CHAPTER   IV 

A    SURVEY    OF    THE    EFFECTS    OF    THE    NEW    POLICY 

Like  many  other  remedies  and  preventives,  the  ap- 
plication of  the  "closed-door"  policy  gave  rise  to  new 
ailments,  which  soon  developed  into  maladies,  quite  as 
serious  as  those  which  it  was  intended  to  cure  and 
prevent,  in  the  constitution  of  the  Chinese  State.  For 
the  attempt  taken  by  the  Government  practically  to  ex- 
clude foreign  religion  and  trade  bred  a  spirit  of  discon- 
tent in  the  minds  of  the  westerners  resident  in  the  em- 
pire. The  dissatisfaction  was  especially  keen  on  the  part 
of  the  foreign  merchants  ;  the  missionaries,  who  occas- 
ionally succeeded  in  penetrating  into  the  inland  to  carry 
on  their  proselytizing  work,  being  willing  to  submit  to 
the  will  of  the  local  authorities.  These  merchants  were 
far  from  being  contented  to  have  their  mercantile  activ- 
ities confined  to  the  single  city  of  Canton  under  any 
circumstances.  If  the  duties  levied  on  commerce  by  the 
officials  in  that  southernmost  provincial  capital  were 
oppressive,  they  wanted  to  remove  their  trade  to  some 
place  where  they  hoped  it  might  be  carried  on  under 
less  onerous  conditions ;  if  on  the  other  hand,  the  trade 
at  Canton  was  profitable,  they  wanted  to  extend  it  to 
other  ports  of  the  Empire  so  that  their  gains  might  be 
proportionally  augmented.  It  was  evidently  this 
"spirit  of  mercantile  avarice"  which  induced  them 
to  send  expensive  missions  one  after  another  to 
Peking  to  petition  for  more  and  more  commercial 
privileges ;  which,  so  far  as  their  practical  object  was 
32  [154 


155]  EFFECTS  OF  THE  NEW  POLICY  33 

concerned,  always  failed.  And  the  repeated  failure  of 
these  missions  tended  only,  on  one  hand,  to  aggravate 
the  grievances  of  the  western  merchants  and  make  them 
more  insistent  on  their  demands  and,  on  the  other,  to 
increase  the  arrogance  of  the  Chinese  authorities  and  to 
all  appearances  confirm  their  belief  that  foreigners  could 
not  live  without  trade  with  China. 

The  foreign  merchants  and  the  Chinese  authorities  thus 
drew  farther  apart  from  each  other;  they  gradually  ranged 
themselves  on  opposite  sides;  and  their  respective  inter- 
ests became  more  and  more  irreconcilable.  Suspicions 
arose  on  the  part  of  the  traders  as  to  the  good  faith  of 
the  Celestial  of^cials  in  protecting  foreign  persons  and 
property,  and  defiance  of  their  authority  soon  became  the 
order  of  the  day.  On  the  other  hand,  the  Chinese  rulers, 
as  they  found  the  foreign  subjects  to  be  increasingly  re- 
calcitrant, applied  to  them  with  greater  industry  and 
persistence  the  policy  of  discrimination  and  exclusion. 
Hence  arose  between  the  foreign  residents  and  the  Chi- 
nese authorities  during  the  last  half-century  of  the  Pre- 
conventional  Period  a  constant  friction,  which  eventually 
resulted  in  open  war  between  China  and  Great  Britain, 
in  the  consequent  abolition  of  the  precarious  regime  of 
foreign  intercourse,  and  in  the  creation  of  another  arti- 
ficial system  for  the  conduct  of  the  relations  between  the 
Chinese  and  the  westerners.  The  evidences  of  friction 
were  most  clearly  reflected  in  those  phases  of  intercourse 
which  related  to  foreign  trade,  to  the  government  and 
protection  of  the  aliens,  and  to  the  question  of  jurisdic- 
tion over  them.  A  review  of  these  problems  in  the 
order  mentioned  is  necessary  to  a  due  appreciation  of 
the  significance  of  the  changes  affecting  the  status  of 
aliens  in  China,  brought  about  by  the  treaty  of  Nanking 
of  August  29,  1842. 


CHAPTER  V 

Organization,  Regulation,  and  Protection  of 
Foreign  Trade 

As  has  already  been  indicated,  after  the  foreign  mer- 
chants made  a  number  of  attempts  to  evade  the  oppres- 
sion of  monopoly  and  official  extortion  at  Canton  by 
seeking  a  less  trammeled  trade  in  Amoy,  Ningpo,  and 
Chusan,  and  failed  on  account  of  the  more  onerous  con- 
ditions required  of  them  there,  they  were  finally  com- 
pelled to  return  to  the  port,  from  which  they  sought  to 
escape,  by  an  imperial  edict  of  1757,  which  closed  all  the 
other  places  in  the  empire  to  foreign  commerce.  From 
that  year  to  1842  Canton,  the  southernmost  city  in 
China,  was,  therefore,  the  only  seat  of  trade  and  inter- 
course open  to  the  foreigner.  The  restriction  as  to  the 
place  of  foreign  trade  was  preceded  by  a  more  incon- 
venient one  as  to  the  persons  with  whom  it  might  be 
conducted.  In  1702  there  was  appointed  the  "Emperor's 
Merchant,"  in  whose  hands  was  concentrated  the  entire 
trade,  and  through  whom  alone  foreigners  were  allowed 
to  sell  their  imports  and  purchase  native  products  for 
export.'  The  introduction  of  this  "monster  in  trade," 
as  he  was  called  by  the  mercantile  community,  was  vig- 
orously objected  to,  and  he  soon  disappeared.  His 
place  was  filled  by  a  combination  of  Chinese  merchants 
formed  in    1720  for  the  purpose  of  regulating   prices  in 

*  H.  B.  Morse,   The  International  Relations  of  the  Chinese  Empire 
(London,  1910),  p.  64. 

34  [156 


1^7]  PROTECTION  OF  FOREIGN  TRADE  35 

tea  and  silk  in  the  interest  of  their  own  purses.'  The 
Cohong,  as  the  organization  was  called,  was  formally 
given  a  charter  by  the  authorities  in  1760  to  carry  on  a 
monopoly  of  the  trade,  but  its  career  was  brief;  for  by 
reason  of  its  insolvency  it  was  dissolved  by  order  of 
the  government  in  1771.  Trade,  however,  was  not  much 
benefited  by  this  stroke  of  official  regulation,  for  its 
immediate  result  was  the  creation  of  a  new  monopolistic 
association,  of  at  first  twelve,  and  later  thirteen  Chinese 
merchants,  known  under  the  old  name  of  Cohong.'' 
This  body,  like  its  predecessor,  was  granted  the  exclusive 
privilege  of  trading  with  foreigners,  the  retail  dealers 
in  imported  goods  being  able  to  carry  on  their  trade 
only  on  its  sufferance,  and  subject  to  suppression  by  the 
authorities  at  its  instance.  In  return  for  the  valuable 
monopoly  the  Cohong  had,  however,  to  perform  onerous 
duties,  political  or  diplomatic  as  well  as  commercial  and 
fiscal.  It  was  responsible  for  the  customs  dues  on  the 
whole  trade,  whether  prosecuted  by  individuals  or 
organized  companies,  and  also  for  the  good  behaviour 
of  the  entire  foreign  population  in  the  factories  and  on 
board  vessels  lying  in  the  port.  It  was  the  sole  inter- 
mediary between  the  Chinese  ofHcial  and  the  foreigner, 
and  was  always  bound  to  transmit  communications  between 
the  two.  Where  the  local  authorities  or  the  Imperial 
Government  had  issued  orders  and  decrees  in  regulation 
of  the  commerce  or  conduct  of  the  foreigner,  it  must 
see  to  it  that  they  were  obeyed:  and  if  obedience  was 
not  secured  it  must  bear  the  consequences  of  official 
wrath,  though  no  special  authority  was  given  to  it  to 
enforce  such  obedience.     The  only  weapon  at  its  disposal, 

*  Morse,  op.  cit.,   p.  65. 
Ibi^  pp.  67-68. 


36  THE  STATUS  OF  ALIENS  IN  CHINA  [158 

in  such  a  case,  was  the  threat  to  stop  trading  altogether, 
which  proved  in  most  instances  sufficiently  terrible  to 
coerce  the  foreign  traders  to  act  in  conformity  with  the 
will  of  the  authorities.' 

On  the  side  of  the  foreign  traders  there  was  no  such 
compact  and  exclusive  organization  as  the  Cohong. 
They  represented  some  twelve  nationalities  •'  and  carried 
on  their  trade  independently  of  one  another  not  only  as 
between  the  merchants  of  different  nations  but,  with  one 
or  two  exceptions,  as  between  those  of  the  same  nation. 
The  exceptions  were  the  two  East  India  Companies,  the 
British  and  the  Dutch,  of  which  the  former,  by  reason 
of  its  power,  wealth,  and  organization  as  well  as  on  ac- 
count of  the  early  exit  of  its  rival  from  the  scene,  was 
by  far  the  more  important  factor  in  the  history  of 
foreign  trade  and  intercourse  at  Canton.  Bv  virtue  of 
its  charter  granted  by  Parliament  the  British  East  India 
Company  was  entitled  to  a  monopoly  of  the  trade 
between  China  and  Great  Britian,  and  in  enjoyment  of 
that  right  it  maintained  in  Canton  a  large  force  of  em- 
ployees and  a  permanent  agency.  Besides,  it  exercised 
an  efifective  authority  and  control  over  all  British  sub- 
jects and  Indiamen  trading  in  China  through  the  power  of 
granting  and  revoking  licenses  without  which  they  could 

'  Sargent,  Anglo-Chinese  Commerce  and  Diplomacy,  pp.   15-17. 

'  These  included  all  the  great  powers  of  the  West  except  Russia. 
One  of  her  subjects,  Krusenstern,  the  circumnavigator,  sailed  to  Canton 
in  1806,  but  while  he  succeeded  in  selling  his  goods  and  reloading  his 
ship,  an  imperial  edict  was  soon  issued,  condemning  his  enterprise  and 
prohibiting  the  renewal  of  similar  attempts  in  the  future.  The  ground 
of  the  prohibition  was  that  the  treaties  of  1689  and  1727  did  not  pro- 
vide for  trade  and  intercourse  anywhere  except  across  the  northern 
frontiers  of  the  empire.  See  the  edict  of  Emperor  Kia-King  on  the 
case,  January,  1806.  Sir  George  Staunton,  Bart.  F.  R.  S.,  Penal  Laws 
of  China  (London,  1810),  p.  518. 


I^g]  PROTECTION  OF  FOREIGN  TRADE  37 

not  trade  there  at  all.  The  select  committee  of  super- 
cargoes, which  was  at  the  head  of  the  Company's  estab- 
lishment in  Canton,  "had  wide  power  of  arrest  and 
seizure  both  of  persons  and  ships  contravening  the  Acts 
of  Parliament  under  which  they  enjoyed  their  privileges."' 
By  reason  of  these  advantages  accruing  from  its  organ- 
ized power  the  Company,  as  compared  to  the  individual 
trader,  stood  in  a  privileged  position  in  Canton.  It 
enjoyed  with  the  Chinese  authorities  a  prestige  and 
influence  which  no  other  body  of  foreign  merchants 
shared.  The  local  ofificials  recognized  its  representatives 
as  a  kind  of  responsible  governors  of  all  the  foreign 
factories  and  negotiated  and  communicated  with  them 
about  matters  pertaining  to  the  regulation  of  trade  and 
the  government  of  the  foreign  traders.  Thus  in  1715, 
for  instance,  the  Hoppo,  collector  of  customs,  entered 
into  an  agreement  of  8  articles  with  the  supercargoes 
of  the  Company  conferring  upon  British  merchants  a 
number  of  privileges.^  Such  privileges,  once  obtained 
by  the  Company,  were  at  once  enjoyable  by  all  other 
foreign  traders  without  a  separate  grant  on  the  part  of 
the  authorities.  For  this  reason  the  western  merchants 
looked  for  protection  against  ofScial  oppression  and  the 
misconduct  of  the  Cohong,  not  to  their  own  consuls, 
who  were,  after  the  fashion  of  the  time,  themselves  mer- 
chants, and  who  "  not  being  credited  by  the  Chinese 
Government,  came  and  went,  hoisted  or  lowered  their 
flags,  without  the  slightest  notice  from  the  authorities,"  3 

•Sargent,  Anglo-Chinese  Commerce  and  Diplomacy,  p.  17  n. ;  citing 
26  Geo.  Ill,  cap.  57;  33  Geo.  Ill,  cap.  52;  53  Geo.  Ill,  cap.  155. 

*  Peter  Auber,  China:  An  Outline  of  its  Government.  Laws,  and 
Policy;  and  of  the  British  and  Foreign  Embassies  to,  and  Intercourse 
with,  that  Empire  (London,  1834),  PP-  152-155. 

'  Williams,  A  History  of  China,  p.  102. 


38  THE  STATUS  OF  ALIENS  IN  CHINA  [i6o 

but  rather  to  the  Company,  which  was  the  actual  bul- 
wark of  their  privileges  and  their  security.  Nor  was  the 
Company  slow  in  turning  its  influence  and  power  to 
account  ;  it  was  always  ready  to  protect  not  only  British 
interests  but  all  foreign  interests.  In  the  words  of  a 
competent  authority: 

It  was  the  only  representative  foreign  body  and,  as  such,  was 
compelled  by  its  traditions  to  champion  the  cause  of  foreign- 
ers in  general/ 

Under  these  circumstances  the  trade  with  the  Cohong 
was  not  necessarily  disadvantageous  to  the  foreign  mer- 
chants. The  rule  permanently  adopted  in  1754,^  which 
required  every  foreign  ship  to  of^er  a  security  merchant 
selected  from  among  the  hong  merchants,  was  a  measure 
designed  to  increase  the  responsibility  of  the  Cohong  for 
the  amount  of  customs  revenue  due  upon  its  cargo  and 
for  the  peaceful  conduct  of  its  crew  rather  than  one  in- 
tended to  place  a  hardship  upon  the  traders  ;  and  this 
was  all  the  truer  because  seldom  would  a  hong  merchant 
refuse  to  act  as  security  for  a  trustworthy  captain  or 
supercargo.  In  the  actual  process  of  trading, ^  which 
consisted  mostly  in  the  bartering  of  foreign  commodities 
for  native  products,  as  Indian  opium  and  English  cotton 
goods  for  Chinese  tea  and  silk,  the  Cohong  had  no  more 
power  to  dictate  prices  than  the  Company  or  the  indi- 
vidual traders;  an  attempt  to  extort  easy  terms  on  im- 
ports in  the  hands  of  the  foreigner  would  be  met  by  a 

*  Sargent,  Anglo-Chinese  Diplomacy,  p.  20. 

*  Auber,  China,  pp.  168-169. 

'  For  an  account  of  the  various  steps  required  by  the  Regulations  to 
be  taken  before  a  foreign  merchantman  could  unload,  see  J.  W.  Foster, 
American  Diplomacy  in  the  Orient  (Boston,  1903),  pp.  33-35;  Morse, 
International  Relations,  pp.  74-76. 


l6i]  PROTECTION  OF  FOREIGN  TRADE  39 

like  demand  in  respect  of  the  export  cargo  in  the  pos- 
session of  the  hong  merchant.  Besides,  every  trader  was 
at  liberty  to  reship  his  cargo  from  Canton  if  he  could 
not  find  a  hong  merchant  willing  to  accept  his  terms. 
In  short,  "monopoly  was  met  by  monopoly."'  In  the 
words  of  another  authority: 

The  Cohong  system,  monopolistic  thoug^h  it  was,  was  one 
which,  on  the  whole,  worked  with  little  friction.  The  foreign 
traders  enjoyed  the  practical  monopoly  assured  to  them  by 
their  distance  from  the  home  market  and  the  difficulty  of  com- 
munication, while  the  East  India  Company,  still  holding  a 
monopoly  of  the  trade  with  England,  paid  the  dividends  on 
their  stocks  in  these  years  solely  from  the  profits  of  their 
China  trade.' 

Nor  did  the  foreign  traders  suffer  much  from  the  sys- 
tem of  the  Cohong  in  other  respects.  The  opportunity, 
enjoyed  by  the  hong  merchants  and  sometimes  utilized 
in  their  own  interest,  of  first  reading  themselves  the 
communications  addressed  by  the  factories  to  the  au- 
thorities, as  a  result  of  their  being  the  sole  intermediaries 
between  the  two,  was  taken  away  from  them  in  1814 
when  Sir  George  Staunton,  as  a  representative  of  the 
Company's  select  committee  at  Canton,  obtained  from 
the  Viceroy  among  other  concessions  the  permission  "  to 
address  the  government  in  Chinese  through  the  Hong 
merchants  without  the  contents  being  inquired  into."  3 
In 'f  83 1  the  privilege  was  robbed  of  all  its  value  to  the 
hong  merchants  when  the  concession  was  made  that  if 
they  intercepted  letters  and  refused  to  transmit   them, 

*  Sargent,  Anglo-Chinese  Commerce  and  Diplomacy,  p.  20. 
'  Morse,  International  Relations,  p.  85. 
'  Auber,  China,  p.  250. 


40  THE  STATUS  OF  ALIENS  IN  CHINA  [162 

two  or  three  foreigners  might  go  to  the  city  gate  and 
give  them  to  the  guard  for  dehvery  to  the  authorities.' 

As  against  the  misconduct  of  the  Provincial  authorities 
the  foreign  trader  had  but  few  remedies.  The  power  of 
regulating  the  trade,  aside  from  the  few  imperial  edicts 
in  general  terms,  rested  mainly  with  the  officials  at 
Canton  and  in  their  hands  it  was  jealously  guarded 
against  encroachment.  In  1829  when  the  representatives 
of  the  East  India  Company  insisted  on  the  reduction  of 
the  heavy  port-charges  on  shipping  and  threatened  to 
stop  the  trade  altogether,  the  Viceroy  replied  : 

As  to  commerce,  let  the  said  nation  do  as  it  pleases;  as  to 
regulations,  those  that  the  celestial  empire  fixes  must  be 
obeyed.'' 

But  there  were  ways  of  seeking  relief  from  the  hostile 
attitude  of  the  authorities  toward  foreign  interests 
which,  though  few,  were  not  always  ineffective.  In  1715 
the  supercargoes  of  the  Company  laid  their  grievances 
before  the  Hoppo  in  a  conference,  and  the  result  was 
a  satisfactory  agreement  of  eight  articles,  one  of  which 
was  : 

8th:  That  the  Hoppo  would  protect  them  from  all  insults 
and  impositions  of  the  common  people  and  Mandarins,  who 
were  annually  laying-  new  duties  and  exactions  which  they 
were  forbidden  to  allow  of." 

When  thirteen  years  later,  in  1728,  a  surtax  of  10  per 
cent  was  levied  on  all  goods  sold  to  foreign  merchants, 

*  Morse,  International  Relations,  p.  70. 

'J.  F.  Davis,  China  and  the  Chinese  (2  vols.,  London,  1857),  vol.  i, 
p.  99. 

•  Auber,  China,  pp.  I53-I54- 


163]  PROTECTION  OF  FOREIGN  TRADE  41. 

the  latter  at  once  set  up  a  campaign  of  protest  and 
agitation  in  order  to  have  it  removed.  Their  complaints 
finally  reached  the  Court  in  Peking  and  in  1736  Emperor 
Kienlung  upon  his  accession  to  the  throne  issued  an 
edict  abolishing  the  extra  duty.' 

Direct  appeals  to  the  Throne  over  the  head  of  the 
Provincial  authorities  constituted  another  remedy  against 
their  cupidity  and  abuse  of  power.  These  took  the  form 
and  character  either  of  an  impressive  embassy  or  of  a 
memorial  by  a  humble  individual.  As  an  instance  of  the 
latter  kind  may  be  cited  the  case  of  Mr.  Flint,  wdio,  as 
an  agent  of  the  East  India  Company,  went  up  to  Tientsin 
in  1759  and  there  sent  a  petition  to  the  Emperor,  pray- 
ing for  relief  from  the  extortions  of  the  Hoppo  at  Can- 
ton. While  the  petitioner  was  subsequently  tried  and 
imprisoned  for  his  adventure,  his  efforts  to  safeguard  the 
foreign  trading  interests  were  not  fruitless.  As  the 
result  of  his  memorial  an  imperial  commissioner  was 
dispatched  to  Canton  to  inquire  into  the  complaints 
made  against  the  collector  of  customs  and  settle  the 
matter.  After  holding  a  court  of  investigation  and  trial 
the  commissioner  assembled  before  him  the  traders  of  all 
nations  and  announced  to  them  that  the  corrupt  Hoppo 
was  degraded  and  that  all  duties  paid  over  the  regular 
six  per  cent  on  goods,  the  perquisites  of  two  per  cent 
to  the  customs  officer,  and  the  tonnage  dues  on  ships 
should  be  remitted.^ 

The  expedient  of  sending  embassies  to  Peking  in 
order  to  lay  before  the  Throne  the  grievances  of  the 
foreign  merchants  and  pray  for  their  redress  proved  less 
successful  in  accomplishing  the    immediate  purposes  of 

'  Auber,  Chitia,  pp.  158-162. 

*  Williams,  A  History  of  China,  pp.  97-98 ;  Davis,  China  and  the  Chi- 
nese, vol.  I,  pp.  48-50. 


42  THE  STATUS  OF  ALIENS  IN  CHINA  [164 

their  promoters,  as  shown  in  the  mission  of  Lord 
Macartney  in  1783  and  in  that  of  Lord  Amherst  in  1816. 
Yet,  the  very  fact  of  their  being  sent  to  Peking  to  appeal 
over  the  head  of  the  Provincial  authorities  necessarily 
produced  a  wholesome  effect  upon  the  foreign  com- 
mercial interests,  for  it  tended  to  place  a  check  upon  the 
corruptions  or  excesses  of  such  authorities. 

However,  the  most  effective  means  in  the  possession 
of  the  foreign  factories  to  compel  the  authorities  to  hear 
their  complaints  and  regard  their  wishes  was  the  threat 
to  stop  trading.  Just  as  the  Cohong  frequently  used 
this  weapon  to  enforce  obedience  on  the  part  of  the 
foreign  community,  so  the  latter,  too,  knew  how  to 
wield  it  for  the  purpose  of  exercising  a  restraint  on  the 
conduct  of  the  Chinese  officials,  who,  though  always 
pretending  to  be  indifferent  to  the  maintenance  of  trade, 
were  in  fact  as  unwilling  as  the  merchants  to  have  it 
cease,  the  two  practical  reasons  being  that  they  were 
responsible  to  the  Peking  Government  for  the  customs 
revenue,  and  that  they  derived  their  incomes  mainly  from 
this  source. 

There  was  another  danger,  born  of  the  peculiar  condi- 
tions under  which  foreign  trade  was  conducted  at  Can- 
ton, from  which  the  alien  merchants  sought  protection. 
This  was  the  occasional  insolvency  of  one  or  more  of  the 
hong  merchants,  with  whom  alone  they  were  permitted 
to  trade.  Attracted  by  high  rates  of  interest,  which 
ranged  from  two  to  five  per  cent  a  month,  money  entered 
Canton  freely,  especially  from  India.'  During  the  seven 
years  beginning  with  1774  the  total  amount  of  debts  in- 
curred by  seven  hong  merchants  and  some  shopkeepers 

'  Hunter,   Fau-Kwai,  p.  39 ;   cited  in   Morse,  International  Relations, 
p.  68. 


1 55]  PROTECTION  OF  FOREIGN  TRADE  43 

who  traded  through  them  reached  $4,296,650.'  A  ma- 
jority of  the  creditors,  who  were  resident  in  India,  ap- 
phed  to  the  Indian  Government  for  assistance  in  seeking 
a  recovery,  and  accordingly.  Sir  Edward  Vernon,  admi- 
ral on  the  station,  dispatched  a  frigate  to  Canton  bearing 
a  remonstrance  to  Isontock,  the  Chinese  Viceroy.^  In 
view  of  this  display  of  force  the  Viceroy  memorialized 
the  Throne  on  the  subject,  and  in  response  the  Emperor 
sent  him  an  edict  ordering  the  liquidation  of  the  debts 
by  the  entire  body  of  hong  merchants,  and  renewing  the 
interdiction,  proclaimed  in  1760,  against  borrowing  from 
strangers.  The  whole  amount  of  indebtedness,  after 
making  a  reduction,  was  ultimately  paid  with  funds 
which  "were  provided  by  a  surtax  on  the  foreign  trade: 
Tls.  I '200  a  picul  on  green  tea,  Tls.  0*620  on  black  tea, 
and  Tls.  6  on  silk."  ^ 

After  1782  the  Cohong  was  given  the  administration 
of  the  so-called  Consoo  fund,  raised  by  a  direct  levy  of 
three  per  cent  on  the  foreign  trade,  and  available  to  meet 
any  liability  for  debts,  fines,  losses,  etc. ;  •♦  and  at  the  same 
time  its  joint  responsibility  for  money  obligations  owing 
to  foreigners  was  confirmed.  The  burden  thus  thrust 
upon  the  Cohong  was  an  onerous  one.  From  1793  to 
1810,  $3,550,000  were  paid  by  it  in  liquidation  of  debts 
due  to  foreign  traders,  including  the  East  India  Com- 
pany, from  Chinese  merchants.  In  the  period  from  1823 
to  1829  the  amount  of  foreign  indebtedness  on  the  books 
of  insolvent  Chinese  was  $2,960,066,  and  the  hong  mer- 
chants as  a  body  again  liquidated  it.^     In  1836  one  of  the 

'  Morse,  International  Relations,  p.  161. 

-  Auber,  China,  pp.  182-183  ;  Davis,  China  and  the  Chinese,  vol.  i,  p.  56. 

'  Morse,  International  Relations,  pp.  161-162. 

*  Ibid.,  p.  68.  *  Ibid.,  p.  162. 


44  THE  STATUS  OF  ALIENS  IN  CHINA  [i66 

hong  members,  the  Hingtai  firm,  became  insolvent  to  the 
amount  of  $2,261,439,  which  sum  was  ascertained  by  a 
joint  committee  of  three  Chinese  and  three  foreign  mer- 
chants. On  April  21,  1837,  the  Cohong,  at  the  instance 
of  the  foreign  creditors,  petitioned  the  Viceroy  for  the 
order  that  the  debtor  firm  should  liquidate  its  indebted- 
ness ;  but  the  Viceroy  informed  the  petitioners  that 
"they  were  held  jointly  responsible — the  property  of  the 
foreigners  cannot  be  left  without  an  ultimate  guarantee 
for  its  safety."'  An  examination  of  the  accounts  was 
ordered,  but  no  satisfaction  was  obtained.  At  the  same 
time  the  firm  of  Kinqua,  another  member  of  the  Cohong, 
also  became  insolvent  to  the  sum  of  $1,000,000,  all  due 
to  foreign  merchants.  The  two  claims  were  amalga- 
mated, and  after  an  attempt  made  by  the  creditors  to 
negotiate  a  settlement  with  the  Cohong  failed  on  ac- 
count of  a  diflerence  of  opinion  as  to  the  period  in  which 
liquidation  should  be  effected,  the  matter  was  referred 
by  some  in  a  memorial  to  the  British  Government  and 
by  others  in  a  petition  to  the  Viceroy  at  Canton.  While 
this  two-sided  representation  w^as  respectively  engaging 
the  attention  of  the  authorities  in  both  countries,  an 
agreement  was  concluded  between  the  creditors  and  the 
Cohong,  whereby  the  debts  of  two  firms  were  to  be  paid 
by  annual  instalments,  those  of  Hingtai  in  eight  and  a 

'  Corr.  Rcl.  China,  1840,  p.  262 ;  quoted  in  Morse,  International  Rela- 
tions, p.  163. 

According  to  Davis,  the  Cohong  was,  after  the  settlement  of  1829, 
released  from  joint  liability  for  the  debts  of  its  individual  members. 
"The  eyes  of  the  government,"  says  he,  "were,  however,  opened  to 
the  mischievous  consequences  of  the  regulation  which  obliged  the  cor- 
poration of  Hong  merchants  to  be  answerable  for  the  debts  of  any 
member  of  the  Consoo,  however  improvident  or  dishonest;  and  it  was 
enacted  that  from  henceforth  the  corporate  responsibility  should  cease." 
— China  and  the  Chinese,  vol.  i,  p.  97. 


167]  PROTECTION  OF  FOREIGN  TRADE  4^ 

half  years,  without  interest,  and  those  of  Kinqua  in  ten 
years,  with  simple  interest  at  six  per  cent.  The  instal- 
ments due  on  the  two  debts  for  the  years  1838  and  1839 
had  already  been  paid  when  war  broke  out  toward  the 
end  of  the  latter  year ;  from  that  time  on  further  pay- 
ments were  suspended,  and  the  question  was  finally 
made  the  subject-matter  of  article  5  of  the  treaty  of 
Nanking,  August  29,  1842,  in  which  China  was  bound 
to  pay  the  round  sum  of  $3,000,000  in  settlement  of  the 
debts.' 

^  Morse,  International  Relations,  pp.  162-165.  It  is  interesting  to  note 
here  that  while  debts  owing  by  the  Chinese  were  generally  liquidated, 
those  due  from  British  merchants  after  1834  often  evaporated,  as  in 
1835  and  1837,  through  the  ready  absconding  of  the  debtors  and  the 
powerlessness  of  the  superintendents  to  compel  satisfaction.  See  25 
Br.  and  For.  State  Papers  (1836-1837),  pp.  390,  395. 


CHAPTER   VI 
Legal  Control  over  Foreigners 

In  the  second  quarter  of  the  nineteenth  century  the 
problem  of  maintaining  a  control  over  the  foreign 
population  in  Southern  China  became  increasingly  dif- 
ficult. The  number  of  "  people  from  afar  ''  grew  steadily: 
at  Canton  there  were  165  foreign  residents  in  1832  and 
307  in  1836.'  Macao  in  1830  was  the  home  of  3351 
white  persons  with  1129  slaves.'  Among  these  were 
British,^  Indians,  Parsees,  Americans,  Portuguese,  Ger- 
mans, Dutch,  Swedish,  Danish,  French,  Spanish  and 
Italians.  While  these  diverse  foreigners  lived  together 
and  constituted  a  community  of  their  own,  they  had  no 
common  organization  over  them.  There  were  indeed 
consuls  in  Macao  and  Canton  :  England  in  1699  sent  a 
commission  to  Mr.  Catchpool,  the  East  India  Company's 
chief  supercargo,  to  be  "  king's  minister  or  consul  for 
the  whole  Empire  of  China  and  the  adjacent  islands'*;  the 
United  States  Congress  in  1786  appointed  Major  Samuel 
Shaw  as  consul  at  Canton  ^ ;  and  the  French  tricolor  was 

'  Morse,  International  Relations,  p.  72.  Ibid.,  p.  46. 

'   "  For  several  months  in  the  year  there  are  not  less  than  two  thou- 
sand of  Her  Majesty's  subjects  at  Canton,  Wliampoa,  Macao,  and  the 
immediately    adjacent   anchorages."     Cap.    Elliot    to    Vt.    Palmerston, 
Sept.  26,  1837,  25  Br.  and  For.  .State  Papers  (1836-1837),  397. 
*  Williams,  A  History  of  China,  p.  94. 

^  Foster,  Am.  Dipl.  in  the  Orient,  p.  32.  This  office  was  purely  hon- 
orary, "  for  there  were  neither  salary  nor  perquisites  annexed  to  it." 
Ibid. 

46  [168 


l59]  LEGAL  CONTROL  OVER  FOREIGNERS  47 

hoisted  in  1802';  but  all  these  representatives  were 
themselves  merchants,  neither  accredited  to  the  Chinese 
Government  nor  recognized  by  it  as  official  agents  of 
their  nations  or  nationals.  The  control  of  the  foreign 
residents  was  naturally  and  properly  left  to  the  Chinese 
authorities. 

The  Chinese  notion  of  territorial  sovereignty  and  juris- 
diction, as  entertained,  though  at  times  vaguely,  by  the 
officials  of  the  Empire  in  the  early  days,  was  not  essen- 
tially different  from  that  which  is  maintained  by  modern 
international  jurists.  Within  the  territory  of  the  Empire 
the  imperial  laws  were  supreme ;  foreigners  who  went 
there  were  permitted  to  stay  only  on  sufferance ;  they 
were  under  the  same  obligation  as  the  Chinese  subjects 
to  obey  them  and  subject  to  the  same  penalties  enacted 
to  punish  their  violation.  This  notion  was  vigorously 
followed  by  the  Chinese  rulers  in  their  intercourse  with 
the  westerners.  The  exercise  by  them  of  the  absolute 
power  to  regulate  commerce  within  their  dominions  has 
already  been  shown."  When  Commissioner  Lin  Tseh-su 
undertook  to  suppress  opium  importation  and  opium 
smoking  the  right  of  regulation  was  again  exercised. 
When  Captain  Elliot,  British  Superintendent  of  Trade, 
refused  to  accept  on  behalf  of  British  subjects  his  pro- 
position that  any  vessel  bringing  opium  into  China  in 
future  should  be  confiscated,  and  that  the  guilty  persons 
should  submit  themselves  to  the  penalties  of  Chinese 
law,  the  commissioner  asked  him  this  question:  "How 
can  you  bring  the  laws  of  your  nation  with  you  to  the 
Celestial  Empire?  "^     And   in  practice,  he  followed   his 

'  Douglas,  Europe  and  the  Far  East,  p.  57. 

-  See  supra,  pp.  34  flf. 

'  Sargent,  Anglo-Chinese  Commerce  and  Diplomacy,  pp.  75-76. 


48  THE  STATUS  OF  ALIENS  IN  CHINA  [170 

views  unhesitatingly.  Among  the  measures  which  he 
enforced  on  foreign  merchants  in  order  to  effect  a  com- 
plete suppression  of  opium  were  those  of  search  in  the 
factories,  confiscation,  imprisonment,  and  expulsion.  He 
apparently  felt  sure  that  in  applying  these  methods  of 
constraint  to  vindicate  the  laws  of  the  Empire  he  was 
only  exercising  a  right  appertaining  to  a  sovereign  and 
independent  nation,  and  conferred  on  him  under  imperial 
sanction. 

It  was  also  in  exercise  of  the  rights  flowing  from  ter- 
ritorial sovereignty  that  the  Chinese  rulers  placed  the 
government  of  foreigners  in  the  hands  of  their  own 
deputies.  "  In  the  Hong  merchants'  factories,"  to  quote 
the  language  of  the  Viceroy  at  Canton,  "  where  foreign- 
ers live,  let  thetii  be  under  the  restraint  and  control  of 
the  Hong  merchants."'  Regulations  were  made  and 
adopted  from  time  to  time  for  observance  by  the  traders 
and  other  foreigners.  Thus  they  were  required  to  re- 
turn from  Canton  to  their  home  or  to  Macao  when  the 
trading  season  was  over ;  they  were  prohibited  to  walk 
about  in  the  streets  of  their  own  accord,  row  on  the 
river,  or  ride  in  sedan  chairs  ;  to  bring  women,  guns, 
spears,  or  other  arms  to  the  factories.'  These  regula- 
tions were  enforced  upon  the  foreigners  under  the  pen- 
alty of  deportation  for  the  offenders  or  of  the  stoppage 
of  trade  for  the  whole  foreign  community.  In  1830,  for 
instance,  the  prohibition  of  trade  was  threatened  to  com- 
pel the  departure  of  three  women  on  visit  from  Macao  to 
the  English  factory,  and  later  in  the  >ear  the  threat  was 
again  employed  for  the  same  purpose  in  the  case  of  a 
visit  by  some  American  women. 

'  Morse,  International  Relations,  p.  70. 
'  Ibid.,  pp.  69-71. 


CHAPTER  VII 
Aliens  Subject  to  Chinese  Criminal  Jurisdiction^ 

With  regard  to  their  criminal  jurisdiction  over  the 
aHen,  Chinese  rulers  of  the  time  were  even  more  jealous 
in  guarding-  it  against  infringement  than  in  keeping  in- 
tact their  control  over  him  in  civil  matters.  The  rule  of 
policy  pursued  by  them  was  that  crimes  committed  on 
Chinese  territory  should  be  punished  according  to  Chi- 
nese laws.  Section  34  of  the  Penal  Code,  which  was  in 
full  force  before  the  system  of  extraterritoriality  was 
formally  introduced  by  treaty,  provided  :  "  In  general,  all 
foreigners  who  come  to  submit  themselves  to  the  gov- 
ernment of  the  Empire,  shall,  when  guilty  of  offences, 
be  tried  and  sentenced  according  to  the  established  laws," 
The  seeming  deviations  which  they  are  sometimes  said 
to  have  allowed  on  their  own  part  in  practice  are  more 
apparent  than  real,  apart  from  the  observation  which 
may  be  made  that  even  if  they  constituted  true  excep- 
tions they  would  only  all  the  more  prove  the  rule. 

Thus  take  a  few  examples.  In  the  agreement  of  171 5 
entered  into  between  the  Chinese  Hoppo  and  the  super- 
cargoes of  the  East  India  Company  there  was  an  article 

'  The  question  of  jurisdiction  in  civil  suits  between  Chinese  and  for- 
eigners did  not  arise  in  this  period,  as  they  were  readily  settled  by 
direct  negotiation  between  the  parties  themselves.  "  Business  disputes 
between  foreigners  were  never  brought  to  the  knowledge  of  the  Chi- 
nese, and  this  was  quite  in  accord  with  the  Chinese  practice  of  settling 
civil  suits  through  the  guild,  or  by  arbitration — never  by  appealing  in 
the  courts."     Morse,  International  Relations,  p.  96. 

171]  49 


50  THE  STATUS  OF  ALIENS  IN  CHINA  [172 

which  provided  in  part  "  that  if  their  English  servants 
should  commit  any  disorder  or  fault  deserving  punish- 
ment, the  Chinese  should  not  take  upon  them  to  punish, 
but  should  complain  to  the  supercargoes,  and  they  would 
see  them  sufificiently  punished  according  to  the  crime."  ' 
This  provision  as  well  as  the  other  seven  in  the  compact 
was  assented  to  by  the  Chinese  customs  collector  at 
Canton,  but  "  there  is  no  evidence  that  they  were  ever 
carried  out."''  Moreover,  even  if  the  authorities  had 
followed  the  provision  in  practice,  still  they  can  hardly 
be  considered  to  have  thereby  assented  to  the  principle 
of  extraterritoriality,  as  it  is  now  understood ;  for  their 
practice  would  have  been  in  accord  with  the  international 
usage  of  the  time,  which  survives  to  this  day  in  the  prin- 
cipal maritime  states  except  Great  Britain,  allowing  to 
the  seamen  of  foreign  vessels  lying  in  port  a  considerable 
measure  of  exemption  from  the  territorial  laws. 

Again,  in  1810,  a  Chinese  was  found  dead  in  a  boat  at 
Whampoa  and  the  murderer  was  believed  to  have  been 
an  English  seaman  of  the  Royal  George,  one  of  the 
Company's  ships,  though  no  evidence  was  adduced  to 
identify  him.  The  Chinese  authorities  at  first  refused  to 
give  clearance  papers  to  the  British  vessels  unless  the 
offender  was  surrendered,  but  they  finally  issued  them 
on  condition  that  the  culprit,  when  discovered,  should 
be  punished  agreeably  to  the  laws  of  England.'  Un- 
doubtedly the  acceptance  of  such  a  condition  by  the 
local  authorities,  might  on  first  thought  be  deemed  as  a 
surrender  of  their  jurisdiction  over  territorial  crimes : 
but  when  viewed  closely  in  the  light  of  the  circumstances,, 

•  Auber,  China,  p.  153. 

*  Morse,  International  Relations,  p.  65. 
»  Auber,  China,  pp.  237-238, 


173]  CHINESE  CRIMINAL  JURISDICTION  51 

the  act  of  acceptance,  it  would  seem,  signifies  no  more 
than  the  adoption  of  the  most  convenient  way  of  termi- 
nating an  impasse  brought  on  by  the  Chinese  themselves 
in  holding  all  the  English  ships  responsible  for  the  acts 
of  a  criminal  whose  identity  was  not  known  to  them. 
There  was,  therefore,  no  real  ground  upon  which  to  base 
an  inference  that  the  settlement  of  the  case  in  that  way, 
was  intended  to  establish  a  precedent  showing  the  con- 
cession on  the  part  of  the  Chinese  rulers  of  the  im- 
portant principle  of  territorial  jurisdiction. 

Still  less  pertinently  could  a  case  of  direct  settlement 
between  the  parties,  such  as  that  of  the  death  of  a  Chinese 
woman  in  1821  alleged  to  have  been  caused  by  the  neg- 
ligence of  the  Company's  ship  Lady  Melville,  in  which 
the  relatives  of  the  deceased  agreed  not  to  bring  the 
matter  before  a  court  but  consider  it  as  closed  in  con- 
sideration of  the  payment  of  an  indemnity  by  the  ship, 
be  interpreted  as  a  relinquishment  of  plenary  jurisdiction 
by  the  Chinese  authorities  ;  for  such  a  composition  for 
crimes  was  then  fully  recognized  by  the  Chinese  law,  the 
theory  of  it  being  that  the  governmental  machinery  was 
maintained  to  preserve  the  public  peace  and  order,  and 
that  so  long  as  a  crime  was  committed  by  one  individual 
upon  another  without  disturbing  the  state  of  public 
tranquillity,  the  officials  were  not  bound  to  take  cogniz- 
ance of  it  unless  the  injured  party  or  his  family  peti- 
tioned them  for  their  intervention  and  redress. 

It  has  been  suggested  that  the  supplementary  treaty 
of  Kiakhta  concluded  with  Russia  on  October  18,  1768, 
amending  article  10  of  the  "Treaty  of  the  Frontier," 
October  21,  1727,  relative  to  the  suppression  of  brigan- 
dage and  other  disturbances  along  the  conterminous 
frontiers,  may  be  considered  as  forming  a  veritable 
exception  to   the  rule  of  plenary  jurisdiction  maintained 


52  THE  STATUS  OF  ALIENS  IN  CHINA  [174 

by  China  within  her  territory.'  The  amended  article 
provided  that  armed  persons  who  crossed  their  own 
boundary  Hne  and  committed  acts  of  brigandage  on  the 
foreign  side  should  be  arrested  and  detained  in  order  to 
be  jointly  examined  by  the  local  authorities,  and  that 
if  they  were  Chinese  subjects,  they  "  shall  be  delivered 
up,  without  distinction  of  persons,  to  the  tribunal  which 
governs  the  outlying  provinces,  and  shall  be  punished 
wdth  death  :  the  subjects  of  Russia  shall  be  delivered  up 
to  their  senate,  to  suiTer  the  same  penalty;  "  adding  that 
"  the  murderers  shall  be  brought  to  and  executed  at  the 
frontier."^  This  stipulation,  which  was,  by  its  terms, 
strictly  reciprocal,  far  from  establishing  the  principle  of 
extraterritoriality,  seems  to  have  involved  nothing  more 
than  an  application,  in  exceptional  circumstances,  of  the 

'  Morse,  in  his  International  Relations  of  the  Chinese  Empire,  p.  60, 
states  that  the  treaty  of  August  27,  1689,  "  introduced  the  first  elements 
of  the  principle  of  extra-territoriality ;  if  any  of  either  nationality 
committed  acts  of  violence  on  the  foreign  side  of  the  frontier,  they 
were  to  be  sent  to  their  own  side  of  the  frontier  and  delivered  to  the 
officers  of  their  own  nation,  '  who  will  inflict  on  them  the  death  penalty 
as  punishment  for  their  crimes.'  "  This  opinion  appears  to  be  based  on 
the  English  translation  of  the  Russian  text  alone,  for  the  Latin  and 
Chinese  texts  of  the  same  treaty  (to  be  found  respectively  in  Treaties 
between  China  and  Foreign  States,  i,  pp.  i  and  2)  do  not,  on  a  close 
examination,  seem  to  support  it.  The  language  of  the  Latin  text,  as 
respects  article  2,  is  vague  and  ambiguous,  while  that  of  the  corres- 
ponding article,  numbered  4,  of  the  Chinese  text  appears  to  confirm 
rather  than  impair  the  principle  of  territorial  jurisdiction.  A  consider- 
able amount  of  uncertainty  of  expression  characterizes  the  treaty  of 
October  21,  1727,  also.  In  fact,  the  various  texts  of  the  two  treaties 
show  not  only  a  want  of  agreement  in  their  meaning  and  purport,  but, 
as  in  the  case  of  the  first  treaty,  a  lack  of  correspondence  in  the  numer- 
ical designation  of  the  articles.  The  ambiguity  of  the  meaning  of  the 
treaty  of  1689  led  to  the  negotiation  and  conclusion  of  that  of  1727, 
and  again  the  vagueness  of  the  provisions  in  the  latter,  particularly  on 
the  subject  of  punishment  of  crimes  along  tlie  frontier,  gave  birth  to 
the  supplementary  treaty  of  1768. 

*  Treaties  betzveen  China  and  Foreign  States,  i,  p.  18. 


175]  CHINESE  CRIMINAL  JURISDICTION  53 

principle  of  personal  law,  which  is  found  in  the  criminal 
jurisprudence  of  substantially  all  civilized  nations  to  a 
greater  or  less  extent.  The  situation  with  which  the 
two  governments  were  dealing  was  that  of  a  boundary 
line  which,  although  adjusted  in  principle,  was  in  many 
places  actually  uncertain.  The  country  was  sparsely 
settled,  and  the  jurisdiction  within  which  an  offence  was 
committed  would  often  be  difficult  to  determine.  In 
these  circumstances  the  two  governments,  in  order  to 
suppress  brigandage,  which  had  more  than  once  caused 
serious  controversies  and  put  in  jeopardy  their  friendly 
relations,  agreed  that  in  case  of  violent  crimes  along  the 
frontier,  the  offenders  should  be  handed  over  to  their 
own  authorities  for  punishment.  Examples  of  similar 
arrangements,  designed  to  meet  similar  conditions,  may 
be  found  in  treaties  between  other  countries.  The 
United  States  and  Mexico  have,  for  instance,  agreed  to 
the  crossing  of  the  frontier  by  the  armed  forces  of  either 
country  in  pursuit  of  hostile  Indians. 

But  while  the  exceptions,  it  is  thus  seen,  are  more 
apparent  than  real,  the  rule  is  exhibited  in  sharp  relief  in 
a  great  number  of  cases.  In  Canton,  for  instance,  aside 
from  the  cases  occurring  respectively  in  1689,  1722, 
1807,  and  1824,  in  each  of  which  the  alien  defendant  was 
sentenced  to  pay  a  fine,  there  arose  a  number  of  those 
in  which  death  sentence  was  executed  by  Chinese 
authorities  on  foreign  criminals.  In  1780  a  French 
seaman  of  the  licensed  ship  Success  killed  a  Portuguese 
sailor  of  the  Stormont  of  the  East  India  Company,  it  was 
said,  in  self-defence.  The  criminal  took  refuge  in  the 
French  consulate,  but  on  demand  of  the  local  authorities 
he  was  given  up  by  the  consul  and  publicly  strangled  by 
order    of   the    governor    of    the    province.'     Four   years 

'  Morse,  International  Relations,  p.  102.     "  This  was  the  first  instance 


54  THE  STATUS  OF  ALIENS  IN  CHINA  [176 

later,  in  November  1784,  a  gunner  on  the  licensed  ship 
Lady  Hughes,  in  firing  a  salute,  wounded  three  Chinese 
boatmen,  one  of  whom  died  the  following  day  from  the 
effect  of  the  injury.  The  foreign  factories  attempted  to 
shelter  him  from  arrest,  but  the  Chinese  ofificials  de- 
manded his  surrender  and,  not  obtaining  it,  arrested  and 
kept  in  custody  the  supercargo  of  the  ship,  evidently  to 
bring  pressure  to  bear  upon  the  alien  traders.  This 
measure  proved  successful,  for  on  November  30,  in 
order  to  secure  the  release  of  the  supercargo,  the  gunner 
was  given  up  by  the  factories  to  the  Chinese  authorities, 
who  caused  him  to  be  strangled  on  January  8,  1785,  in 
execution  of  a  judgment  received  from  Peking.'  Again, 
on  September  23,  1821,  Francis  Terranova,  an  Italian 
sailor  on  board  the  American  ship  Emily,  threw  down 
an  earthern  jar  on  a  Chinese  woman,  who  was  selling 
spirits  and  fruits  in  a  boat  alongside  of  the  ship,  and 
thereby  caused  her  death.  The  Chinese  authorities  held 
a  trial  of  the  accused  on  board  the  vessel  in  the  midst  of 
some  forty  Americans  and  ordered  him  to  be  put  in  irons 
and  delivered  up.  On  the  captain's  refusal  to  hand  him 
over,  the  American  trade  was  stopped.  A  week  later, 
on  October  25,  the  prisoner  was,  however,  brought  into 
the  city,  given  a  second  trial,  again  adjudged  guilty,  and 
strangled  on  the  public  execution  ground. ="  It  was 
stated  that  at  the  trial  on  board  the  Emily  the  American 
merchants  said  to  the  Chinese  judge  :  "  We  are  bound 
to  submit  to  your  laws  while  we  are  in  your  waters,  be 
they  ever  so  unjust.     We  will  not  resist  them."^ 

of  an  European  being  executed  for  the  murder  of  another  in  China,  and 
•was  considered  to  form  a  dangerous  precedent."     Auber,  p.  181. 

1  Davis,  China  and  the  Chinese,  vol.  t,  pp.  57-59;  Auber,  China,  pp. 
183-188. 

'  Williams,  A  History  of  China,  p.  108;  Davis,  China  and  the  Chinese, 
p.  90;  Foster,  American  Diplomacy  in  the  Orient,  pp.  40-41. 

^  North  American  Review  (January-June,  1835),  58,  66. 


177]  CHINESE  CRIMINAL  JURISDICTION  55 

Even  in  Macao,  a  place  leased  to  Portugal  for  an 
annual  rental  of  500  taels,  which  was  paid  regularly  until 
1849,  there  had  always  been  a  Chinese  ofificer  to  sit  in 
judgment  of  all  criminal  cases.  In  1749  certain  alleged 
criminals  took  refuge  in  the  convent  of  Nossa  Senhora 
do  Amparo,  and  the  Portuguese  refused  to  deliver  them 
up;  but  as  soon  as  the  Chinese  authorities  cut  off  their 
supplies  and  ordered  other  traders  to  leave  the  city,  they 
yielded  and  accepted  a  convention,  the  fifth  article  of 
which  "  provided  that,  in  case  of  homicide,  the  Chinese 
official  at  Casa  Branca  should  go  to  Macao  to  sit  as  cor- 
oner, and  that  he  should  transmit  the  evidence  to  Canton 
for  final  judgment."'  In  1773  an  Englishman,  Francis 
Scott,  was  charged  with  the  killing  of  a  Chinese  at 
Macao,  and  he  was  arrested,  tried,  and  acquitted  by  the 
Portuguese  authorities ;  but  the  Chinese  authorities  in- 
sisted upon,  and  finally  obtained,  his  surrender  to  them, 
retried  him,  and  executed  him.^  In  fact  the  criminal 
jurisdiction  in  Macao  was  exercised  by  Chinese  rulers 
not  only  in  cases  wherein  a  Chinese  was  concerned, 
as  plaintiff  or  defendant,  but  also  in  those  between  for- 
eigners.^  "  In  cases  of  murder,"  states  a  contemporary 
writer,  "though  it  should  happen  that  an  European 
killed  another  in  Macao,  the  Portuguese  government 
was  not,  at  an  early  period  at  least,  suffered  to  try  the 
cause.  The  Chinese  mandarins  judged,  condemned,  and 
executed  the  criminal,  and  that  even  within  the  walls  of 
the  city."'^ 

Jealous  as  the  Chinese  authorities  were  in  preserving 
intact  their  rightful  jurisdiction  over  territorial  crimes, 
they  do  not  appear,  on  the  other  hand,  to  have  evaded 
the  responsibility  of  protection,  which  is  the  complement 

^  Morse,  Intern.  Rel.,  p.  45.  ''  Ibid.,  pp.  101-102. 

'  Ibid.,  p.  100.  *  Auber,  China,  p.  85. 


56  THE  STATUS  OF  ALIENS  IN  CHINA  [178 

of  the  right  of  jurisdiction.  In  172 1  an  officer  of  the 
Hoppo  accidentally  died  near  Whampoa,  and  a  Chinese 
Mandarin  having  the  command  of  1,000  soldiers  forth- 
with arrested  two  mates  and  four  inferior  officers  of  the 
Cadogan,  as  they  were  walking  near  the  factory  at  Can- 
ton fourteen  miles  from  where  the  customs  officer  died. 
The  arrest,  though  undoubtedly  occasioned  by  the  inci- 
dent at  Whampoa,  was  nevertheless  made  without  prob- 
able cause,  and  therefore  upon  the  supercargoes'  repre- 
sentation for  redress,  the  commander  who  committed 
the  affront  was  degraded  and  dismissed  from  his  office, 
and  a  promise  was  also  given  that  he  would  be  bambooed 
and  rendered  incapable  of  being  again  admitted  into  the 
Emperor's  service.'  Where  murder  or  assault  was 
committed  on  foreigners  by  Chinese  subjects, '  the 
culprits  were  punished  by  the  authorities  with  equal 
rigor  and  promptness.  As  was  recorded  by  a  chronicler 
of  the  time,  '*  the  Chinese  have  no  desire  to  screen  their 
countrymen  from  punishment  when  guilty,  but  that  the 
inquiry  must  be  carried  on  according  to  their  own  forms 
and  usages."  ^ 

^Auber,  China,  pp.  155-156. 

'  A  summary  of  the  cases  in  which  Englishmen  were  assaulted  or 
killed  by  Chinese  is  given  in  Morse,  International  Relations,  pp.  107-108. 
'  Auber,  China,  p.  310. 


PART  II 
THE  CONVENTIONAL  PERIOD  (since  1842) 


CHAPTER  VIII 
The  New  Regime 

To  all  intents  and  purposes  the  treaty  of  Nanking, 
August  29,  1842,  which  was  the  first  sequel  of  the  Opium 
War,  confers  for  the  first  time  a  definite  status  on  the 
alien  in  China.  Heretofore  he  had  no  legal  standing 
before  the  Chinese  authorities;  he  traded  and  resided  in 
the  Empire — in  Canton  and  Macao — purely  on  their 
sufferance;  but  now  he  enjoys  these  privileges  as  rights 
guaranteed  by  imperial  agreements.  Subsequent  treaties 
with  other  nations  as  well  as  with  Great  Britian  have 
enlarged  the  scope  of  the  alien's  rights  and  multi- 
plied them  in  number.  Thus  take  a  few  examples.  The 
general  regulations  of  July  22,  1843,  made  in  pursuance 
of  the  treaty  of  Nanking  expressly  provide  for  the 
punishment  of  Englishmen  committing  crimes  in  China 
by  English  laws,  thus  placing  them  under  the  recognized 
protection  of  extraterritoriality.  Again,  the  treaty  of 
Tientsin  with  the  United  States,  June  18,  1858,  secures 
for  the  Christian  missionary  in  China  not  only  toleration 
in  the  exercise  of  his  religion  but  the  liberty  quietly 
to  teach  it.  Once  more,  the  treaty  of  June  26,  1858, 
with  Great  Britain  enables  British  subjects  under  pass- 
ports to  travel,  for  pleasure  or  for  purposes  of  trade,  to 
all  parts  of  the  interior ;  and  that  of  October  8,  1903, 
with  the  United  States  recognizes  the  right  of  missionary 
societies  to  rent  and  to  lease  in  perpetuity,  as  their  public 
property,  buildings,  or  lands  in  all  parts  of  the  Empire. 
From  their  very  nature,  however,  the  rights  of  the 
181]  59 


6o  THE  STATUS  OF  ALIENS  IN  CHINA  [182 

alien  in  China  have  their  limitations,  and  both  these 
must  be  sought,  in  the  first  and  last  analysis,  in  the 
treaties  concluded  between  China  and  foreign  states. 
Usage  forms  the  basis  neither  of  the  one  nor  of  the 
other.  Unlike  Turkey,  China  has  conceded  nothing 
which  is  derogatory  of  her  sovereign  rights,  beyond 
what  she  has  voluntarily  surrendered  in  written  com- 
pacts ; '  prior  to  her  entering  into  the  successive  treaties 
and  agreements  with  the  powers,  beginning  with  that  of 
August  29,  1842,  she  always  claimed  the  full  measure  of 
her    sovereignty   and   jurisdiction    within    her    territory, 

^  "  The  system  of  extraterritoriality  in  China,  and  formerly  in  Japan, 
is  built  on  another  basis  than  that  on  which  extraterritoriality  in  Turkey 
has  been  placed.  In  Turkey  it  is  based  on  custom  and  usage,  while  in 
China  it  rests  solely  on  treaty."  Mr.  Bayard  to  Mr.  Straus,  April  20, 
1887,  Appendix  to  3  Wharton's  Digest  of  International  Law,  p.  854, 
sec.  68a.  That,  in  the  absence  of  treaty  stipulations  to  this  effect,  the 
privilege  of  extraterritoriality  is  not  enjoyable  by  any  foreigners  in 
China  would  seem  necessarily  to  follow,  by  analogy,  from  the  decision 
in  the  case  of  the  Maria  Luc.  This  was  a  Peruvian  bark.  In  1872  it 
put  into  the  port  of  Kanagawa,  Japan,  with  a  cargo  of  coolies  from 
China  to  Peru,  under  stress  of  weather.  The  Japanese  Government,  on 
being  apprized  of  cruelties  inflicted  on  the  coolies  by  the  master,  ordered 
an  investigation.  Some  Chinese  coolies  on  board  were  summoned  to 
appear  as  witnesses,  but  they,  once  on  shore,  refused  to  return.  The 
master  of  the  bark  demanded  that  they  be  restored,  but  the  Japanese 
authorities  informed  him  that  he  might  sue  for  their  restoration  on 
their  contracts  with  him.  The  court,  to  which  the  suit  was  brought, 
refused,  however,  either  to  decree  specific  performance  of  the  contracts 
or  to  grant  damages.  Subsequently,  the  Peruvian  Government  pre- 
sented claims  against  Japan  in  behalf  of  the  master;  but  the  Emperor 
of  Russia,  to  whom  the  case  was  referred  by  the  two  governments  to 
be  arbitrated,  decided  that  in  the  absence  of  formal  stipulations  there 
could  not  be  "  placed  upon  the  Japanese  Government  the  responsibility 
of  action  which  it  has  not  wittingly  provoked,  and  of  measures  which 
are  in  conformity  with  its  own  legislation,"  hinting  at  the  same  time 
that  to  avoid  similar  misunderstandings  in  the  future,  evidently  about 
the  question  of  jurisdiction,  special  treaties  might  be  made  with  Japan 
with  a  view  to  making  reciprocal  relations  more  precise.  See  5  Moore, 
International  Arbitrations,  5034. 


183]  THE  NEW  REGIME  61 

and  generally  enforced  her  claim  in  practice ;  after  the 
establishment  of  her  treaty  relations,  she  naturally  and 
rightly  looked  upon  her  own  express  engagements  as  the 
sole  guide  in  her  treatment  of  the  alien  within  her 
Empire ;  the  custom  that  may  be  tolerated  by  the 
authorities  of  a  given  locality  not  being  accepted  by  her 
as  either  to  expand  or  limit  the  provisions  of  treaties 
conferring  rights  on  him.  In  short,  what  is  not  ex- 
pressly conceded  by  China  in  treaties  with  foreign  powers 
remains  as  part  and  parcel  of  her  unyielded  sovereignty. 
This  point  is  necessary  to  be  noted  here,  because,  if  it  is 
overlooked,  the  status  of  the  alien  in  China,  which  will 
be  outlined  in  the  following  sections  of  the  chapter, 
cannot  be  accurately  and  fully  appreciated. 


CHAPTER   IX 

ORIGIN    OF    THE    EXTRATERRITORIAL    JURISDICTION    IN 

CHINA. 

§  I.  Essence  of  Judicial  Extraterritoriality  and  its 
intricate  genesis  in  China. 

Extraterritoriality  in  China  has  a  more  intricate  origin 
than  that  commonly  attributed  to  it.  Unlike  the  so- 
called  extraterritoriality  of  diplomatic  officers,  the  ab- 
normal system  is  legally  constituted  by  two  concurrent 
conditions,  namely,  the  exemption,  partial  or  complete, 
of  aliens  from  the  territorial  laws  and  the  application  to 
them  to  the  same  extent,  by  their  representatives  within 
the  territory,  of  the  laws  of  their  own  country ;  but 
historically  the  first  condition  may  have  existed  without 
legal  authorization,  thus  leaving  an  interval,  so  to  speak, 
of  lawlessness,  and  this  is  practically  what  happened  in 
China.  No  exemption,  either  plenary  or  limited,  from 
the  operation  of  the  local  laws  was  accorded  aliens  by 
Chinese  authorities  prior  to  the  conclusion  of  the  first 
treaties  with  Great  Britain  ;  on  the  contrary,  and  as  was 
shown  in  a  preceding  section,  the  rulers  of  the  time, 
conscious  of  their  rights,  were  very  jealous  in  preserving 
their  sovereignty  and  jurisdiction  from  infringement,  and 
in  general,  they  succeeded  in  carrying  out  their  national- 
istic policy ;  what  is  meant  here  is  that  the  alien  traders, 
particularly  the  British,  early  began  to  withdraw  them- 
selves, by  open  defiance,  from  the  operation  of  the 
local  laws,  and  that  to  a  considerable  degree,  they  were 
62  [184 


185]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     63 

successful  in  pursuing  their  course  of  sheer  contumacy. 
Likewise  the  assertion  and  exercise  by  Great  Britain  of 
jurisdiction  over  her  subjects  in  China  were  commenced 
nearly  a  decade  before  China's  consent  to  such  ques- 
tionable procedure  was  obtained,  though,  it  is  true,  con- 
siderably later  than  the  adoption  on  the  part  of  the 
traders  of  the  attitude  of  non-submission  to  the  local 
laws.  Indeed,  when  hostilities  broke  out  in  1839  be- 
tween the  two  countries  over  the  opium  question,  extra- 
territoriality in  China,  as  far  as  the  British  subjects  were 
concerned,  may  be  said  to  have  already  traversed  a  per- 
sistent, though  slow  and  irregular,  course  of  develop- 
ment; to  have  fought  many  battles  with  the  Chinese 
authorities  for  its  own  existence,  undergone  several 
stages  of  experimentation,  and  begun  to  assume  an 
aspect  of  stability  and  appear  as  the  inevitable,  in  spite 
of  the  vigorous  and  continued  efforts  of  the  Chinese 
rulers  to  oppose  and  subvert  it.  What  Great  Britain 
succeeded,  therefore,  in  wringing  from  China  at  the  end 
of  the  expensive  and  ignoble  war  in  1842,  in  respect  of 
the  question  of  jurisdiction  over  British  subjects  in 
China,  was  merely  an  official  recognition  of  w-hat  had 
already  been  brought  into  being  and  engrafted  on  her, 
in  practice,  without  her  consent  or  countenance. 

§  2.   General  attitude  of  defiance  071  the  part  of  aliens  in 
early  days  tozvards  Chinese  authority 

That  this  is  a  historically  correct  statement  of  the 
evolution  of  the  extraterritorial  system  in  China  will  be 
clearly  seen  when  it  is  fully  considered  how  the  Chinese 
law  relaxed  its  hold  on  the  aliens,  how  the  British  law 
and  court  were  introduced  and  gradually  extended  over 
British   subjects  in  China,  how  her  recognition  of   the 


64  THE  STATUS  OF  ALIENS  IN  CHINA  [i86 

artificial  system  was  extracted,  and  finally  how  the  sys- 
tem itself  was  immediately  improved  upon  and  placed 
upon  a  permanent  footing  by  the  British  Government. 

As  to  the  first  of  these  questions,  it  is  to  be  observed 
that  a  want  of  regard  for  Chinese  laws  characterized  the 
foreigners  who  went  to  China  in  the  seventeenth  and 
eighteenth  centuries.  They  were  either  adventurous  or 
desperate  characters,  and  with  the  exception  of  a  few 
missionaries,  they  were  all  animated  by  the  sole  desire  to 
seek  fortune  in  a  new  land.  It  mattered  little  what  the 
territorial  laws  required  and  what  they  prohibited ;  they 
came  on  a  mission  to  replenish  their  purses  and  were 
prepared  to  leave  as  soon  as  their  object  was  accom- 
plished ;  in  their  opinion,  it  would  have  been  disloyal  to 
themselves  to  allow  their  conduct  to  be  shackled  by  laws 
of  which  they  knew  nothing,  and  about  which  they  did 
not  care  to  know  anything.  A  small  number  of  them, 
endowed  with  an  inquiring  turn  of  mind,  indeed  mani- 
fested an  interest  in  Chinese  laws  and  acquired  a  knowl- 
edge of  them  ;  but  then,  they  observed,  China  was  such 
a  different  country  from  their  own,  particularly  in  relig- 
ion, that  they  considered  it  impossible  to  obey  her  laws 
without  at  the  same  time  humiliating  themselves  and 
disgracing  their  own  country.  To  govern  themselves  by 
laws  with  which  they  were  familiar,  was  equally  impos- 
sible; there  was  no  common  organization  in  existence 
over  them,  nor  could  they  recognize  any  one  of  their 
own  class  assuming  to  restrain  their  conduct  in  China 
and  regulate  their  intercourse  with  the  Chinese  people. 

Under  these  circumstances  it  is  not  surprising  that 
they  considered  themselves  as  exempt  from  all  laws, 
Chinese  and  other,  and  that  they  lived  in  China  "very 
much  in  what  the  lawyers  called  '  a  state  of  nature,'  that 
is    governed    by    no    rule    but    their    own    passions    or 


187]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     65 

interests."'  And  violence  naturally  became  the  favorite 
means  of  attaining  their  ends,  however  illegitimate  they 
were.  Thus  in  183 1,  for  instance,  several  European 
opium-smuggling  boats  shot  a  number  of  innocent 
Chinese  in  order  to  clear  their  way  of  obstructions  to 
the  prosecution  of  their  illicit  trade.  In  1833  another 
party  of  foreign  traders  organized  an  armed  attack  on  a 
Chinese  village  for  the  same  reason.  Another  case  of 
equal  significance  and  interest,  as  illustrating  the  attitude 
of  the  alien  traders  of  the  time,  occurred  in  the  same 
year.  A  licensed  English  merchant,  James  Innes,  one 
afternoon  at  2  p.  m.  demanded  of  a  security  merchant 
the  arrest  before  sunset  of  Chinese  who  had  wounded 
him  in  the  arm,  and  threatened  to  burn  down  the  Chin- 
ese customs  house  in  case  of  non-compliance  with  his 
demand  within  the  alloted  space  of  time.  As  this  was 
not  done  by  the  Chinese  merchant,  "  I  bought  rockets 
and  bluelights,"  as  he  subsequently  declared  before  the 
select  committee  of  the  East  India  Company,  "  and  by 
eight  p.  m.  the  Mandarin's  house  was  on  fire."''  The 
conduct  of  the  western  people  in  Canton  could  easily  be 
imagined  from  the  candid  declaration  of  one  of  the  wit- 
nesses examined  in  May,  1840,  presumably  about  the 
opium  traffic.  "We  never  paid  any  attention,"  he  said, 
"to  any  law  in  China  that  I  recollect." ^ 

This  attitude  of  defiance  toward  Chinese  laws  was 
necessarily  aggravated  by  the  difficulty  of  enforcing  them 
on  foreigners  caused  by  the  transient  character  of  the 
trade  in  which  they  were  engaged,  and  by  the  inability 
of  the  Chinese  officers  to  understand  their  language  and 
to  distinguish  their  identities  one  from  another,     For- 

1  Davis,  China  and  the  Chinese,  vol.  i,  p.  100. 

'  Auber,  China,  pp.  364-366. 

3  Davis,  China  and  the  Chinese,  vol.  i,  p.  126  n. 


66  THE  STATUS  OF  ALIENS  IN  CHINA  [i88 

eigners  remained  in  Canton  only  during  the  trading 
season ;  when  it  was  over,  they  usually  left,  as  they  were 
indeed  required  to  until  a  very  late  period,  for  places 
outside  the  dominions  of  China,  Even  if  they  had  re- 
mained in  Canton  or  gone  to  other  parts  of  the  country, 
it  would  have  been  difficult  for  the  Chinese  authorities  to 
apprehend  the  alien  offender  in  a  given  case  of  breach  of 
local  laws  without  the  aid  of  his  own  countrymen.'  The 
combined  result  of  these  two  circumstances  was  that 
foreign  criminals  could  easily  escape  from  justice,  and 
foreign  debtors  abscond  without  encountering  serious 
obstructions  on  their  way  to  other  parts  of  the  world. 
And  this  impunity  of  the  guilty  and  the  dishonest  nat- 
urally served  as  encouragement  to  those  who  already  had 
only  too  little  regard  for  the  territorial  laws,  to  persist 
in,  if  not  actually  to  carry  to  a  still  more  objectionable 
point,  their  chosen  course  of  resistance  to  authority. 

Nor  was  this  attitude  confined  solely  to  individual 
traders;  the  select  committee  of  the  East  India  Com- 
pany likewise  considered  itself  and  its  employees  as 
being  exempt  from  the  obligation  of  observing  the  local 
laws,  and  it  endeavored  to  defend  its  position  on  two 
grounds.  First,  it  argued  thus :  "  Nations  in  general 
must  be  admitted  to  possess  the  right  of  regulating  their 
commerce  according  to  their  separate  views  of  policy ; 
but   China   forms    an   exception    to   civilized    countries, 

^  "As  the  native  officers  of  government  do  not  understand  the  lan- 
guage of  the  foreigners,  it  has  always  been  the  practice  to  order  the 
chiefs  of  the  respective  countries  to  find  out  the  murderer,  and  ques- 
tion him  fully,  and  ascertain  distinctly  the  facts,  and  then  deliver  him 
up  to  the  government,  after  which  a  linguist  is  summoned,  the  interro- 
gatories translated,  and  the  evidence  written  down,  and  the  prosecution 
conducted  to  a  close." — Canton  Viceroy's  memorial  on  the  Terranova 
Case,  1821,  Staunton,  Notices  of  Chitia,  p.  419. 


iSg]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     67 

where  trade  is  regulated  by  treaties."'  It  was  in  pur- 
suance of  this  view  that  it  arrogated  to  itself,  as  has 
already  been  pointed  out  heretofore,  the  role  of  cham- 
pioning the  cause  of  foreigners  in  Canton  in  opposition 
to  the  authorities.  Secondly,  it  considered  itself  as 
possessing  "unlimited  power  over  every  British  subject 
and  vessel  in  this  Empire;"^  and  accordingly  it  con- 
tended that  British  subjects  and  their  property  in  China 
were  subject  to  its  exclusive  control. 

It  may  perhaps  be  thought  that  the  occasional  visits 
of  British  naval  representatives  to  the  dominions  of  the 
Chinese  Emperor  must  have  produced,  both  by  their 
moderate  views  and  by  their  exemplary  conduct,  a  salu- 
tary effect  upon  the  exotic  lawless  elements,  particularly 
upon  their  own  countrymen.  But  unfortunately  this  does 
not  seem  to  have  been  the  case,  and  the  influence  which 
their  presence  exerted  appears  to  have  been  altogether 
in  the  opposite  direction,  the  reason  being  that  their 
views  were  intemperate  and  their  conduct  was  far  from 
exemplary.  A  few  cases  will  probably  suffice  to  illustrate 
the  statement.  In  1741  Commodore  Anson  of  H.  M.  S. 
Centurion,  forcibly  brushing  aside  all  opposition,  entered 
Canton  and  constrained  the  Chinese  to  furnish  him  with 
supplies  ;  after  which  he  left  the  port,  captured  a  Spanish 
galleon  from  Acapulco,  and  ignoring  the  protest  of  the 
local  authorities,  re-entered  Canton  with  his  prize. ^  In 
1802  and  1808  British  marine  forces,  under  orders  from 
the  British  Government,  were  landed  in  Macao  to  occupy 
the  place  in  order  to  prevent  attack  by  the  French,  with- 
out even  giving  notice  to  the  Chinese  authorities.'*     In 

^  Quoted  in  Sargent,  Anglo-Chinese  Commerce  and  Diplomacy,  p. 
40  n. 

2  Ibid.,  p.  46.  ^  Davis,  China  and  the  Chinese,  vol.  i,  pp.  44-45- 

*  Ibid.,  pp.  65-66,  73-77. 


68  THE  STATUS  OF  ALIENS  IN  CHINA  [190 

1814  the  British  frigate  Doris  seized  two  American  ves- 
sels lying  in  the  Canton  river,  and  "considerably  within 
the  admitted  range  of  Chinese  neutrality," — an  incident 
which  "  was  considered  by  the  Chinese  not  merely  as  a 
national  aflfront,  but  as  actually  connected  with  some  ulte- 
rior schemes  for  an  hostile  invasion  of  their  territory."' 

§  3.  British  resistance  to  the  exercise  of  jurisdiction  over 
them  in  cri7ni7ial  cases 

But  it  was  in  cases  of  homicide  and  wounding  com- 
mitted by  their  countrymen  in  Canton  that  the  British 
traders  resisted  most  openly  and  persistently  the  exer- 
cise of  authority  and  jurisdiction  over  them  by  the  Chi- 
nese rulers, — a  fact  which  more  than  any  other  led  to  the 
subsequent  inauguration  of  the  British  extraterritorial 
system  in  China.  In  any  case  of  offence  committed  by 
a  foreigner  it  was  common  for  his  factory  chief,  or  the 
supercargo  of  his  vessel  in  port,  to  refuse  the  demand  of 
the  local  authorities  for  his  delivery  for  trial  and  make  a 
show  of  resistance  at  the  outset ;  but  while  the  subjects 
of  all  other  nations  usually  yielded  in  the  end  and  allowed 
the  Chinese  law  to  take  its  own  course,  the  British,  with 
the  organized  strength  of  the  East  India  Company  be- 
hind them,  generally  persisted  to  the  last  in  their  defiance 
to  authority. 

In  pursuing  this  course  the  English  merchants  must 
have  found  a  renewed  impetus  in  the  case  of  a  French- 
man who  killed  a  Portuguese  sailor  in  December,  1780. 
Prior  to  that  year,  although  cases  of  homicide  perpe- 
trated by  foreigners  had  occasionally  occurred  in  Canton, 
as  in  1689,  1722  and  1754,  yet  in  none  of  them  had  the 
offender  been  executed,  he  having  been  either  freed 
on  payment  of  a  fine  or  an  indemnity,  or  sentenced  to 
'Davis,  op.  cit.,  78;  Mor.'ie,  Ir.lcni.  I'd.,  p.  55. 


IQl]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     69 

imprisonment.'  In  the  case  of  1780  the  accused  was 
actually  put  to  death  by  the  authorities  in  pursuance  of 
a  judicial  sentence  passed  on  him.  The  feeling  which  the 
execution  awakened  in  the  minds  of  Englishmen  at  Can- 
ton, with  their  peculiar  propensity  to  disregard  the  local 
laws,  may  be  inferred  from  the  statement  recorded  by  an 
English  chronicler  of  the  time:  "This  was  the  first  in- 
stance of  an  European  being  executed  for  the  murder  of 
another  in  China,  and  was  considered  to  form  a  danger- 
ous precedent."''  Then,  four  years  later,  occurred  the 
gunner's  case,  "  which  led  to  the  adoption  of  extreme 
measures  of  defence  on  the  part  of  the  Select  Committee, 
and  to  those  of  equal  determination  to  enforce  the  laws 
on  the  part  of  the  Chinese."  ^  On  November  24,  1784, 
information  reached  Canton  that  a  gun  fired  from  the 
country  ship  Lady  Hughes,  while  saluting,  had  wounded 
three  Chinese,  one  of  whom  died  the  following  day. 
Chinese  deputies  were  at  once  sent  to  the  president  of 
the  English  factory  to  demand,  in  accordance  with  the 
laws  of  the  Empire,  that  the  man  who  fired  the  gun 
should  be  given  up  for  public  examination.  They  were, 
however,  informed  by  the  Select  Committee  that  in  all 
probability  the  gunner  had  absconded  and  that  the  com- 
mittee had  no  power  over  country  ships,  but  that  the 
supercargo  of  the  Lady  Hughes  would  be  induced  by 
every  means  to  produce  the  man,  if  the  Chinese  would 
consent    to  have    his  examination    held   in    the    factory 

*  At  Macao,  foreign  offenders  in  such  cases  had  been  executed  by  the 
Chinese  authorities,  notably  in  that  of  Francis  Scott,  an  Englishman,  in 
"^nz — a  case,  by  the  way,  which  was  characterized  by  an  English  writer 
on  China  as  "a  most  atrocious  act  of  sanguinary  injustice,"  "stamping 
indelible  disgrace  on  the  Portuguese  of  that  place." — Davis,  China  and 
the  Chinese,  i,  p.  52. 

'  Auber,  China,  p.  iSi. 

*  Ibid.,  p.  183.  : 


THE  STATUS  OF  ALIENS  IN  CHINA 


[192 


— "a.  stipulation  which,"  according  to  Davis,  "was 
founded  on  the  recollection  of  what  occurred  in  the 
Frenchman's  case."'  The  deputies  declared  that  the 
trial  must  be  before  the  Fooyuen  in  the  city.  The  fol- 
lowing morning  the  supercargo,  who  had  been  dispatched 
by  the  Select  Committee  to  Canton  "  for  the  purpose  of 
explaining  the  circumstances,"  was  "decoyed  away  and 
conveyed  into  the  city  under  a  guard  of  soldiers  with 
drawn  swords."^  The  committee  took  alarm,  and  in 
concert  with  the  other  factories,  ordered  up  the  boats  of 
the  several  ships,  manned  and  armed  "as  a  guard  to  the 
committee's  persons,  in  case  any  violence  should  be  in- 
tended, as  well  as  to  manifest,  in  the  strongest  manner, 
the  view  which  they  took  of  the  conduct  of  the  local 
authorities."  3  The  Chinese  rulers,  not  knowing  the  ob- 
ject of  the  bellicose  preparations  on  the  part  of  the  for- 
eign factories,  took  similar  measures  of  precaution  for 
themselves,  and  appeared  determined,  as  on  previous 
occasions,  to  enforce  the  law  of  the  land.  At  the  same 
time  they  requested  a  deputation  from  the  factories  to 
visit  the  supercargo  in  their  custody,  apparently  to  con- 
vince them  that  he  was  v*ell  taken  care  of.  The  emis- 
saries on  their  return  reported  that  "  his  behaviour  was 
much  agitated,  and  it  was  evident  he  would  be  glad  to 
get  handsomely  out  of  the  business."''  As  a  matter  of 
fact,  he  had  been  very  civilly  treated,  as  he  subsequently 
declared  after  his  release. ^     But  the   Select   Committee 

'  China  and  the  Chinese,  i,  p.  57.  '  Aubcr,  p.  184. 

'  Ibid.  *  Davis,  China  and  the  Chinese,  i,  p.  58. 

*  In  the  proceedings  of  the  select  committee  it  was  recorded :  "  In 
about  an  hour  after  [the  surrender  of  the  gunner]  the  supercargo 
arrived  at  the  factory,  and  gave  a  very  satisfactory  account  of  the 
treatment  he  met  with  and  the  civilities  he  received  from  the  several 
mandarins,  most  of  whom  visited  him  and  sent  him  presents." — Auber, 
China,  p.  185. 


193]    ^^^^^^  ^^  EXTRATERRITORIAL  JURISDICTION     71 

apparently  had  great  misgivings  as  to  the  fate  of  the 
supercargo  in  the  hands  of  the  authorities,  and  accord- 
ingly, at  his  request,  they  gave  up  the  gunner  to  the 
Chinese  officials  with  a  recommendation  in  his  favor, 
signed  by  the  representatives  of  the  foreign  community. 
The  supercargo  was  immediately  liberated,  and  the  gun- 
ner was  tried,  convicted  and  imprisoned  pending  a  final 
decision  from  the  Throne.  On  January  8,  1785,  an  order 
was  received  from  the  Emperor,  in  pursuance  of  which 
the  gunner  was  strangled.' 

The  outcome  of  the  gunner's  case  keenly  disappointed 
the  British  traders  at  Canton  including  the  select  com- 
mittee, although  years  before,  in  1754,  they  had  de- 
manded of  the  local  authorities  with  equal  insistence  the 
most  condign  punishment  of  a  French  sailor  who  had 
killed  one  of  their  countrymen  in  an  affray ; '  for  there- 
after they  pursued  an  unvaried  course  of  lasting  opposi- 
tion to  the  surrender  of  any  English  criminal  for  trial 
before  a  Chinese  court  of  justice.  A  brief  review  of  the 
cases  of  homicide  or  wounding  involving  Englishmen, 
which  arose  during  the  period  from  the  settlement  of 
the  gunner's  case  to  the  termination  of  the  rule  of  the 
East  India  Company  at  Canton,  will  illustrate  the  policy 
of  the  British  subjects  in  China. 

On  February  11,  1800,  the  officer  of  the  watch  on 
board  H.  M.  schooner  Providence,  sent  from  Lintin  to 
Whampoa  by  H.  M.  S.  Madras,  having  hailed  a  boat 
which  had  been  at  the  schooner's  bow  for  some  time, 
and  receiving  no  answer,  fired  into  her,  under  a  convic- 

'  Auber,  China,  p.  187. 

*  Davis,  China,  i,  p.  47.  In  this  case  the  viceroy,  at  the  demand  of 
the  English,  stopped  the  French  trade  until  the  offender  was  given  up. 
The  latter  was  thrown  into  prison  after  conviction,  but  released  the 
following  year  by  order  of  the  Emperor  on  occasion  of  a  general  act 
of  grace. 


j'2  THE  STATUS  OF  ALIENS  IN  CHINA  [194 

tion  that  the  parties  were  attempting  to  cut  the  vessel's 
cable.  The  shot  wounded  a  Chinese,  and  another  fell 
overboard  and  was  drowned.  The  local  government 
demanded  of  the  select  committee  that  the  offender, 
who  had  meanwhile  been  kept  in  custody  by  the  lieu- 
tenant of  the  schooner,  should  be  given  up  for  examina- 
tion and  be  confronted  with  his  Chinese  accuser,  who 
charged  him  with  having  in  a  struggle  occasioned  the 
other  to  fall  overboard.  Captain  Dilkes,  of  the  Madras, 
admitted  the  act  of  wounding  but  made  some  counter 
charges  of  theft  and  declared  that  he  could  not  allow  the 
seamen  in  his  ship  to  be  examined  at  Canton  without 
his  being  present.  The  negotiations  had  already  lasted 
for  a  month  when  the  discovery  by  the  authorities  of 
the  fact  that  the  man  who  was  drowned  threw  himself 
overboard,  together  with  the  circumstances  that  the 
wounded  Chinese  had  recovered  from  his  injury,  brought 
the  matter  to  an  uneventful  conclusion.' 

A  more  significant  case  occured  in  1807.  On  Febru- 
ary 24,  some  sailors  of  Company's  ship  Neptune  went 
on  shore  and,  while  under  the  influence  of  ardent  spirits, 
entered  into  a  quarrel  with  some  Chinese.  Thereupon 
the  commander  and  officers  interposed  and  secured  their 
men  within  the  factory :  but  the  Chinese  followed  them 
in  great  numbers  and  continued  the  disturbance  in  spite 
of  the  efforts  of  the  mandarins  and  security  merchants 
to  disperse  them.  Toward  the  close  of  the  day,  the 
sailors  eluded  their  officer,  rushed  out  to  renew  the 
fight,  and  although  they  were  brought  back  again,  they 
wounded  several  Chinese,  one  of  whom  died  three  days 
afterwards.  The  usual  demand  on  the  part  of  the  local 
officials  for  the  surrender  of  the  offenders  for  trial  was 

'  Auber,  China,  pp.  203-206. 


1 92]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     73 

made  to  the  select  committee,  but,  of  course,  in  vain. 
There  was  also  some  difficulty  in  discovering  the  person 
who  struck  the  mortal  blow  in  the  affray.  Investiga- 
tions were  conducted  on  board  the  Neptune  by  the 
British,  and  an  offer  of  $20,000  was  made  by  a  Chinese 
security  merchant  as  a  reward  for  the  discovery  of  the 
offender.  Trade  was  meanwhile  stopped  by  the  local 
government.  To  extricate  themselves  from  the  pre- 
dicament, the  select  committee  proposed  an  examination 
of  the  fifty-two  men  of  the  Neptune  to  be  held  in  the 
British  factory,  which  proposal  the  authorities  at  first 
rejected,  and  afterward  accepted.  The  trial  which  took 
place  was  described  in  the  following  terms : 

Althoug-h  the  forms  and  solemnities  of  a  Chinese  court  of 
justice  were  observed,  an  important  concession  was  made  in 
favor  of  the  Committee,  seats  being  provided  for  Captain 
Rolles  of  his  Majesty's  Ship  Lion,  the  members  of  the  Com- 
mittee, and  for  Sir  Georg:e  Staunton,  and  two  of  Captain 
Rolles'  marines  with  fixed  bayonets  were  allowed  to  remain 
sentries  at  the  door  of  the  factory  during  the  whole  of  the 
examination.' 

No  evidence  was  produced  by  the  Chinese  but  Captain 
Buchanan,  of  the  Neptune,  admitted  that  eleven  of  the 
men  had  been  most  violent,  hoping  that  some  punish- 
ment against  these  men  would  have  satisfied  the  demand 
for  justice.  The  authorities,  however,  appeared  deter- 
mined to  ascertain,  if  possible,  the  man  who  struck  the 
blow.  The  discovery  of  the  principal  offender  being 
apparently  impossible,  it  was  finally  arranged  that  one  of 
the  eleven  whom  the  mandarins  considered  as  the  most 
guilty,  should  be  detained  in  Canton  in  the  custody  of 

'  Auber,  China,  p.  226. 


74  THE  STATUS  OF  ALIENS  IN  CHINA  [196 

the  select  committee,  obviously  to  await  a  decision  of 
the  Emperor  on  the  case.  Edward  Sheen  was  accord- 
ingly named.  But  soon  after,  the  committee  attempted 
to  bring  Sheen  with  them  to  Macao,  and  this  evoked 
strong  ob'ections  from  the  authorities.  Captain  Rolles, 
of  H.  M.  S.  Lion,  now  intervened  :  he  declared  that  he 
felt  it  to  be  utterly  impossible  to  allow  Sheen  to  remain 
at  Canton,  and  threatened  to  take  him  to  the  Lion  if  the 
Chinese  persisted  in  refusing  to  allow  him  to  go  to 
Macao.  In  the  face  of  this  coercion  they  acquiesced  in 
the  plan  of  the  committee.  An  imperial  edict'  of  Janu- 
ary, 1808,  adjudged  Sheen  to  be  guilty  of  accidental 
homicide,  and  he  was  accordingly  released  from  deten- 
tion on  payment  of  the  sum  of  12.42  taels  (about  4 
pounds  sterling)  to  the  family  of  the  deceased,  as  pre- 
scribed by  the  Chinese  law  for  such  cases. 

Before  leaving  this  case,  however,  it  is  interesting  to 
quote  here  what  the  secretary  to  the  Court  of  Directors 
of  the  East  India  Company  recorded  about  the  settle- 
ment of  the  affair,  as  showing  that  in  pursuing  the  policy 
of  obstructing  the  course  of  Chinese  law  and  justice,  the 

^  For  the  text  of  the  edict,  see  Staunton,  Penal  Laxvs  of  China  (Lon- 
don, 1810),  appendix  xi,  p.  523.  A  curious  point  in  this  document  is 
that  the  statement  of  the  facts  of  the  case  made  by  the  viceroy  at  Can- 
ton (probably  himself  a  victim  of  the  deceptions  of  his  subordinate 
officers),  as  embodied  in  the  edict,  is  at  total  variance  with  what 
actually  took  place — killing  in  an  affray.  In  the  report  it  was  stated 
that,  on  a  certain  morning,  "  Edward  Sheen  employed  a  wooden  stick 
in  an  oblique  direction  to  keep  open  the  shutter  of  the  above-mentioned 
window ;  but  in  doing  this,  the  wooden  stick  slipped  and  fell  down- 
wards. It  happened  also  that  Leao-a-teng,  a  native  of  China,  went  to 
the  street  called  She-san-hong  to  buy  goods,  and  passing  at  the  same 
moment  under  the  said  upper  story,  was  struck  and  wounded  by  the 
end  of  the  stick  falling,  as  aforesaid,  upon  his  left  temple,  and  he 
thereupon  fell  to  the  ground."  The  report  added  that  medical  assist- 
ance proved  of  no  avail  to  the  wounded  man  and  that  he  died  the  fol- 
lowing day. 


igy]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     y^ 

British  subjects  at  Canton  were  also  encouraged  by  those 
of  their  countrymen  who  were  accustomed  to  practise 
no  better  principles  of  intercourse  with  a  foreign  people 
than  those  they  observed  in  India: 

The  whole  of  the  proceedings  regarding-  the  aflfair  of  the  A^ep- 
tune  received  the  approbation  of  the  Court,  who  expressed 
their  entire  satisfaction  with  the  ability  and  firm  conduct  dis- 
played by  the  Committee,  and  also  the  sense  which  they  enter- 
tained of  the  important  services  rendered  by  Captain  Rolles 
and  Sir  George  Staunton.  Captain  Rolles  was  presented  with 
;^i,ooo  by  the  Court  of  Directors,  and  Sir  George  Staunton 
was  appointed  by  the  Court  Chinese  interpreter  to  the  fac- 
tory/ 

The  two  cases  of  homicide,  occurring  respectively  in 
i8io^  and  1820,  were  terminated  with  no  pregnant  re- 
sults, as  regards  the  question  now  under  consideration, 
since  in  each  of  them  the  real  offender  was  not  dis- 
covered, although  his  surrender  was  as  usual  insisted 
upon  by  the  authorities  and  clearance  papers  were  with- 
held for  a  while.  In  the  latter  case,  the  fact  of  a  butcher 
on  board  the  Company's  ship  Duke  of  York  killing  him- 
self in  a  fit  of  insanity,  was  communicated  by  the  com- 
mittee to  the  local  government  "  in  such  terms,  that 
without  a  direct  asseveration  on  the  part  of  the  committee 
that  he  was  the  man  who  caused  the  death  of  the  Chin- 
ese, left  the  local  authorities  to  infer  such  was  the  case."^ 
The  case  of  the  death  of  a  Chinese  woman  in  1821,  in 
which  the  Company's  ship  Lady  Melville  was  implicated, 
"  was  settled,  as  innumerable  others  have  been,  by 
pecuniary  inducements  to  the  relations  of  the  deceased 
not  to  lodge  complaints  with  the  officers  of  government. "< 

'  Aiiber,  China,  p.  228.  '  See  supra. 

*  Auber,  China,  p.  283.  *  See  supra 


76  THE  STATUS  OF  ALIENS  IN  CHINA  [igS 

In  the  same  year  (1821),  the  full  enforcement  of  the 
Chinese  law  was  again  openly  defeated  in  the  case  of 
H.  M.  S.  Topaze.  On  December  15,  the  frigate,  then 
at  the  Lintin  anchorage,  dispatched  a  barge  to  the 
island  of  Lintin  for  water  and  also  to  enable  the  seamen 
to  wash  their  clothes.  While  thus  engaged,  they  were 
attacked  by  a  Chinese  mob  armed  with  clubs  and  bam- 
boo spears.  To  cover  the  retreat  of  the  seamen,  the 
commander  on  board  the  frigate  sent  a  party  of  marines  in 
two  armed  cutters  and  at  the  same  time  fired  several  rounds 
from  the  big  guns  at  the  neighboring  village,  to  keep  it 
in  check.  In  the  clash  of  forces  fourteen  Englishmen 
were  wounded  and  on  the  Chinese  side  two  were  killed 
and  four  wounded.  On  the  19th,  Captain  Richardson, 
of  the  Topaze,  addressed  a  request  to  the  viceroy  urging 
him  to  punish  the  delinquents.  The  viceroy  replied  by 
stating  that  a  deputy  would  be  sent  to  Lintin  to  investi- 
gate the  case,  and  that  the  wounded  Englishmen  should 
be  sent  on  shore  for  examination.  The  captain  objected 
to  the  latter  proposal,  and  as  to  the  former,  he,  appar- 
ently misapprehending  the  object  of  the  viceroy's  sug- 
gestion, declared  that  he  would  not  allow  an  official 
examination  on  board  the  King's  ship.  The  committee 
of  the  factory  was  accordingly  informed  by  the  viceroy 
that  if  the  men  from  the  Topaze  were  not  sent  on  shore, 
or  if  the  captain  departed  before  the  affair  was  settled, 
the  chief  of  the  factory  should  be  held  responsible. 
Meanwhile  the  trade  was  stopped,  and  the  viceroy 
issued  an  edict,  which  in  part  reads : 

Heretofore  the  governors  have  never  had  ofificial  correspond- 
ence with  the  naval  officer  of  the  said  nation.  On  this  occa- 
sion, as  his  representation  said,  natives  had  wounded  fourteen 
Englishmen,  I  therefore  deputed  an  officer  to  take  with  him 


Iqq]     origin  of  extraterritorial  jurisdiction     yj 

the  Hong"  merchants  and  the  linguists  and  g^o  to  Lintin,  and 
take  an  inquest  of  foreig^ners  who  were  wounded,  and  prose- 
cute. If  the  said  man  of  war  really  had  any  men  who  had 
received  wounds,  it  was  incumbent  on  her  to  obey  my  orders 
and  deliver  them  up,  and  wait  till  an  inquest  was  taken,  and 
proof  being"  obtained,  the  matter  might  be  examined  into  and 
justly  prosecuted  ;  but  abruptly  to  request  the  said  deputed 
officer  to  go  on  board  to  hold  an  inquest  was  not  only  a 
violation  of  the  forms  of  g"Overnment,  but  a  thing  impossible 
to  be  done  ;  and  then  to  make  this  a  cause  of  obstinate  resist- 
ance, excites  a  suspicion  that  the  tale  of  fourteen  men  being 
wounded  was  for  the  most  part  not  true/ 

On  the  frigate's  leaving  Linton  for  Macao,  the  viceroy 
issued  another  edict  declaring  the  chief  of  the  English 
factory  to  be  responsible,  but  the  select  committee  re- 
turned an  answer  that  it  had  no  control  over  ships  of 
war  and  requested  him  to  negotiate  directly  with  the 
captain.  On  January  5,  1822,  hearing  that  the  viceroy 
was  about  to  cite  the  case  of  1784  as  a  precedent,  the 
committee,  in  concert  with  the  captain,  took  steps  "for 
the  immediate  removal  of  every  Englishman  from  Can- 
ton, with  the  view  to  ulterior  measures."  Five  days 
later,  it  notified  the  authorities  of  the  Province  that  in 
view  of  their  attitude  toward  the  committee,  the  latter 
resolved  to  quit  Canton  with  all  the  Company's  ships. 
Seeing  that  the  committee  had  no  control  over  the 
warship,  the  viceroy  on  the  13th  absolved  it  from  all 
responsibility,  but  still  forbade  the  resumption  of  trade 
until  the  seamen  were  given  up  for  examination.  The 
merchants,  though  still  refusing  to  return  to  Canton 
under  such  circumstances,  were  yet  anxious  to  rerjew 
trading,  and  they  suggested  to  Captain  Richardson  a 
proposal  which  they  thought  might  satisfy  the  Chinese 

'  Auber,  China,  p.  291. 


78  THE  STATUS  OF  ALIENS  IN  CHINA  [200 

authorities.  This  was  to  the  effect  that  inasmuch  as  the 
captain  in  deciding  on  the  case  could  not  be  master,  he 
would,  on  his  return  to  his  country,  report  the  affair  to 
his  sovereign,  and  the  parties  concerned  might  be  prose- 
cuted according  to  law.  The  viceroy  rejected  the  over- 
ture and  reiterated  his  demand  for  the  delivery  of  the 
men.  The  matter  thus  came  to  a  deadlock.  However, 
the  frigate  having  sailed  on  February  8,  after  receiving 
a  mandarin  on  board  and  giving  him  an  account  of  all  the 
circumstances  connected  with  the  Linton  affair,  the 
viceroy,  on  receiving  assurance  from  the  select  committee 
that  the  whole  case  would  be  reported  by  the  captain  to 
his  sovereign,  permitted,  by  an  edict  of  February  22,  the 
re-opening  of  the  trade.  In  November,  1823,  the  de- 
mand for  the  surrender  of  the  men  was  renewed,  but  the 
matter  was  ultimately  dropped.' 

On  his  return  home  the  first  lieutenant  of  the  Topaze 
was  court-martialed  but  finally  acquitted ;  and  the  Ad- 
miralty issued  an  order  to  the  naval  commander-in-chief 
in  India  that  in  future  no  vessel  of  war  should  visit  any 
part  of  China,  without  a  requisition  from  the  Governor- 
General  of  India,  or  from  the  select  committee  of  super- 
cargoes at  Canton.  The  Bengal  Government  was  at  the 
same  time  enjoined  "carefully  to  abstain  from  requiring 
any  ship  in  his  Majesty's  service  to  proceed  to  China 
unless  in  case  of  indispensable  necessity,"  and  the  select 
committee  was  ordered  likewise  not  to  do  it  except 
when  induced  by  "an  occurrence  of  vital  importance  and 
of  the  most  urgent  necessity."* 

In  1824,  an  accusation  was  made  by  a  Chinese  against 
a  midshipman  of  the   Company's  ship  the  Earl  of  Bal- 

'  Auber,   China,   pp.  288-309;   Davis,   China,   i,  p.  91;   Morse,   Intern. 
Rel,  p.  105. 
*  Auber,  China,  p.  306. 


20l]    ORIGIN  Of  EXTRATERRITORIAL  JURISDICTION     yg 

carras  for  having  caused  the  death  of  a  man  in  a  boat 
alongside  of  the  ship  by  throwing  a  billet  down  on  him, 
and  $3,000  was  demanded  as  a  compensation.  The 
ship's  surgeon,  after  examining  the  body,  declared  that 
the  man  had  died  from  disease,  and  later  it  also  appeared 
that  the  billet  had  not  hit  him  at  all,  but  that  the  allega- 
tion was  an  attempt  at  extortion.  The  matter  was 
reported  to  the  viceroy  by  the  select  committee  and  one 
of  the  Chinese  was  arrested,  the  Fooyuen  declaring  that 
the  parties,  if  guilty,  should  be  severely  punished.' 

The  last  case  of  homicide  which  occurred  before  the 
termination  of  the  rule  of  the  Company  was  that  of  1833, 
in  which  a  Chinese  was  killed  in  an  affray  at  Kumsing- 
moon.  Although  an  innocent  Lascar  was  induced  to 
declare  himself  the  murderer  and  brought  to  Canton,  he 
was  released  by  order  of  the  authorities  after  an  ex- 
change of  correspondence  with  the  select  committee.* 

§  4.  Examination  of  the  reasons  assigned  for  the 
resistance. 
It  is  thus  seen  that  although  the  number  of  cases  of 
homicide  and  wounding  in  which  Englishmen  were 
involved  is  on  the  whole  not  at  all  appalling,  yet  the 
policy  of  the  English  merchants  with  regard  to  the 
enforcement  of  the  Chinese  criminal  law  upon  their 
offending  countrymen  in  such  cases  is  unmistakable. 
The  question  arises,  what  were  the  reasons  for  such 
open  and  persistent  obstruction  on  their  part  of  the 
course  of  law  and  justice?  Were  it  that  no  cause  was 
assigned  by  them  for  their  recalcitrancy,  it  might  cer- 
tainly be  sufficiently  explained,  though  not  justified,  on 
two  concurrent  general  grounds.     In  the  first  place,  the 

'Auber,  China,  p.  310. 

*  Morse,  Intern.  Rel.,  p.  107. 


8o  THE  STATUS  OF  ALIENS  IN  CHINA  [202 

average  human  being,  untrained  in  abstract  philosophy 
or  positive  law,  naturally  finds  the  use  of  capital  punish- 
ment, for  whatever  crime  it  may  be,  to  be  repugnant  to 
his  feelings,  and  the  British  merchants  at  Canton  in  the 
early  days  were  neither  all  philosophers  nor  all  lawyers. 
Secondly,  the  disrespect  toward  the  territorial  laws, 
predicable  of  foreigners  in  China  generally,  was  so 
aggravated,  in  the  case  of  the  British  at  Canton,  by  the 
characteristic  Anglo-Saxon  pride  and  faith  in  the 
superiority  of  their  own  race  and  in  the  supremacy  of 
their  own  institutions  that  they  could  not  see  how  any 
of  their  countrymen  could  have  committed  a  crime  in 
China,  and  if  perchance  one  of  them  was  found  guilty, 
still  they  could  see  no  reason  why  he  should  sacrifice 
his  life  or  freedom  to  vindicate  the  laws  of  a  barbarous 
nation,  alike  to  the  humiliation  of  his  compatriots  and 
to  the  disgrace  of  his  own  civilized  land.  But  the 
British  merchants  in  China,  with  the  wealth  and  or- 
ganized power  of  the  East  India  Company  back  of  them, 
were  naturally  not  content  with  leaving  their  conduct  to 
be  explained  by  posterity  unaided  by  a  word  of  defence 
from  their  own  lips ;  they  gave  reasons  for  what  they 
did,  and  it  therefore  becomes  interesting  to  inquire 
whether  or  how  far  these  reasons  were  valid  or  true. 

One  of  the  principal  grounds  assigned  by  the  foreign- 
ers at  Canton  generally,  and  by  the  British  in  particular 
for  opposing  the  course  of  Chinese  law  was  the  alleged 
"sanguinary  injustice"  of  its  provisions.  Whatever 
accurate  knowledge  a  handful  of  the  wiser  among  them 
may  have  possessed  on  the  subject,  the  prevailing  notion 
of  the  foreign  community  at  Canton  was  that  the  laws 
of  China  recognized  neither  distinction  nor  difference 
between  wilful  and  accidental  homicide  :  that  in  either 
case  it  was  simply  a  question  of  the  forfeiture  of  a  life 


203]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     gl 

for  a  life,  admitting-  no  excuse  and  no  justification  under 
any  circumstances. 

This  belief,  however,  was  totally  destitute  of  founda- 
tion, as  will  be  seen  even  after  a  very  cursory  examina- 
tion of  the  pertinent  provisions  of  the  Chinese  Penal 
Code  then  in  force.  Section  290,  relative  to  killing-  with 
an  intent  to  kill,  and  killing  in  an  affray,  reads:' 

All  persons  guilty  of  killing-  in  an  affray  ;  that  is  to  say> 
striking-  in  a  quarrel  or  afiray  so  as  to  kill,  thoiig-h  without 
any  express  or  implied  desig-n  to  kill,  shall,  whether  the  blow 
was  struck  with  the  hand  or  the  foot,  with  a  metal  weapon, 
or  with  any  instrument  of  any  kind,  suffer  death,  by  being 
strangled,  after  the  usual  period  of  confinement. 
All  persons  guilty  of  killing  with  an  intent  to  kill,  shall  suffer 
death  by  being  beheaded,  after  being  confined  until  the  usual 
period. 

When  several  persons  contrive  an  affray,  in  the  course  of 
which  an  individual  is  killed,  the  person  who  inflicts  the  sever- 
est blow  or  wound,  shall  be  strangled,  after  the  usual  period 
of  confinement.  The  original  contriver  of  the  affray,  whether 
he  be  engaged  in  it  or  not,  shall  be  punished  at  the  least,  with 
100  blows,  and  perpetual  banishment  to  the  distance  of  3,000 
lee.  The  rest  of  the  party  concerned  shall  be  punished  with 
100  blows  each. 

Section  292,  relative  to  killing  or  wounding  in  play,  by 
error,  or  purely  by  accident,  reads :  ^ 

All  persons  playing  with  the  fist,  with  a  stick,  or  with  any 
weapon,  or  other  means  whatsoever,  in  such  a  manner  as 
obviously  to  be  liable  by  so  doing  to  kill,  and  thus  killing  or 
wounding  some  individual,  shall  suffer  the  punishment  pro- 
vided by  the  law  in  any  ordinary  case  of  killing  or  wounding 

'  Penal  Latvs  of  China,  trans,  by  Sir  G.  Staunton,  p.  311. 
'  Ibid.,  p.  313. 


82  THE  STATUS  OF  ALIENS  IN  CHINA  [204 

in  an  affray  ;  likewise  any  person  who,  being-  engaged  in  an 
affray,  by  mistake  kills  or  wounds  a  by-stander,  shall  be  pun- 
ished in  the  same  manner ;  that  is  to  say,  the  person  killing 
another  in  the  manner  above  stated,  shall  suffer  death  by 
being  strangled.  If  guilty  of  wounding  only,  he  shall  be  pun- 
ished more  or  less  severely  according  to  the  nature  of  the 
wounds  inflicted.  .  .  . 

All  persons  who  kill  or  wound  others  purely  by  accident,  shall 
be  permitted  to  redeem  themselves  from  the  punishment  of 
killing  or  wounding  in  an  affray,  by  the  payment  in  each  case 
of  a  fine  to  the  family  of  the  person  deceased  or  wounded. 
By  a  case  of  pure  accident,  is  understood  a  case  of  which  no 
sufficient  previous  warning  could  have  been  given,  either 
directly,  by  the  perceptions  of  sight  and  hearing,  or  indirectly, 
by  the  inferences  drawn  by  judgment  and  reflection  ;  as  for 
instance,  when  lawfully  pursuing  and  shooting  wild  animals, 
when  for  some  purpose  throwing  a  brick  or  a  tile,  and  in 
either  case  unexpectedly  killing  any  person  ;  when  after 
ascending  high  places,  slipping  and  falling  down,  so  as  to 
chance  to  hurt  a  comrade  or  by-stander ;  when  sailing  in  a 
ship  or  other  vessel,  and  driven  involuntarily  by  the  winds  ; 
when  riding  on  a  horse  or  in  a  carriage,  being  unable,  upon 
the  animal  or  animals  taking  flight,  to  stop  or  govern  them  ; 
or  lastly,  when  several  persons  jointly  attempt  to  raise  a  great 
weight,  the  strength  of  one  of  them  failing,  so  that  the  weight 
falls  on,  and  kills  or  injures  his  fellow-laborers  ;  in  all  these 
cases  there  could  have  been  no  previous  thought  or  intention 
of  doing  an  injury,  and  therefore  the  law  permits  such  persons 
to  redeem  themselves  from  the  punishment  provided  for  kill- 
ing or  wounding  in  an  affray,  by  a  fine  [12.42  taels]  to  be 
paid  to  the  family  of  the  deceased  or  wounded  person,  which 
fine  will  in  the  former  instance  be  applicable  to  the  purpose 
of  defraying  the  expense  attending  the  burial,  and  in  the 
latter,  to  that  of  procuring  medicines  and  medical  assistance. 

From   these  sections    two  facts    stand   out   clearly,   in 
spite   of   the   contrary  notion   very  generally  entertained 


205]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     83 

by  the  foreigners  at  Canton  in  the  early  days.  First,  the 
Chinese  law,  like  any  other  system  of  law,  recognizes 
different  degrees  of  culpable  homicide,  the  punishment 
of  death  for  both  murder  and  manslaughter  not  being 
inconsistent  with  the  fact  of  differentiation,  inasmuch  as 
the  forms  of  execution  in  the  two  instances  are  different, 
namely,  beheading  in  the  one  case  and  strangling,  by 
which  the  body  is  not  mutilated,  in  the  other.  Sec- 
ondly, the  same  law,  as  has  been  observed  by  an  English 
translator  of  the  Code,  "  not  only  remits  the  punishment 
of  death  in  cases  of  accident,  but  defines  these  cases  with 
considerable  accuracy." ' 

In  fact,  too,  the  principle  of  life  for  life,  so  often 
alleged  by  foreign  residents  in  China,  particularly  by 
those  who  went  there  in  the  days  of  limited  intercourse 
between  China  and  western  states,  as  underlying  and 
controlling  the  Chinese  law  of  homicide,  is  never  allowed 
to  modify  the  written  laws  on  the  subject,  or  to  operate 
in  any  way  except  for  the  benefit  of  the  accused  in  such 
cases.  Indeed,  were  it  otherwise,  it  would  be  altogether 
inconsistent  with  the  extreme  jealousy  with  which  the 
Code  regards  and  protects  the  person.  A  single  illus- 
tration will  suffice  to  explain  the  operation  of  the  prin- 
ciple. According  to  section  290,  in  an  affray  contrived 
by  several  persons,  resulting  in  the  killing  of  an  indi- 
vidual, the  one  who  strikes  the  severest  blow  shall  be 
strangled.  Now  if  none  of  the  participants  in  the  affray 
is  found  to  have  inflicted  the  severest  blow,  the  principle 
of  life  for  life  will  never  be  allowed  in  such  a  case  so  to 
operate  as  to  put  any  one  of  the  accused  to  death,  in 
spite  of  the  absence  of  evidence  proving  that  he  struck 
the   severest   blow.     It  operates  only  in   the   following 

'  Staunton,  Notices  of  China,  p.  410. 


84  THE  STATUS  OF  ALIENS  IN  CHINA  [206 

case  :  When  several  persons,  all  participants  in  an  affray 
resulting  in  the  killing  of  some  individual,  are  arrested 
on  the  charge  of  homicide,  if  one  of  them  dies  in  prison 
before  the  final  settlement  of  the  case,  or  when  being 
brought  on  his  way  to  trial,  or  commits  suicide  for  fear 
of  a  death  sentence  against  him,  then  by  the  operation 
of  the  principle,  the  person  who  may  afterwards  be  con- 
victed of  having  struck  the  severest  blow,  will  not  be 
sentenced  to  death,  as  he  surely  should,  if  one  of  his  co- 
partners in  the  crime  had  not  died,-  but  his  punishment 
will  be  reduced  by  one  degree  and  he  will  be  sentenced 
to  banishment  instead.' 

Another  allegation  made  by  the  British  in  defence  of 
their  policy  of  resistance  to  the  enforcement  of  Chinese 
laws  upon  them  in  cases  of  homicide  was  couched  in  the 
following  terms  : 

Whatever  may  be  the  distinctions  in  the  Chinese  written  laws, 
we  see  that  in  the  practice,  as  far  as  respects  Europeans,  no 
discrimination  is  shown,  and  on  the  present  occasion  we  see 
that  the  plea  of  self-defence  is  decidedl}^  rejected/ 

This  passage  is  taken  from  the  minutes  of  the  select 
committee  recorded  in  January,  1823,  and  the  occasion 
referred  to  was  the  case  of  the  To/>aze.  Remembering 
the  real  circumstances  of  the  case,  which  have  been 
stated  above,  it  can  hardly  be  overlooked  that  the  state- 
ment as  to  the  rejection  of  the  plea  of  self-defence  is 
misleading  and  inaccurate.  In  that  case,  as  in  all  others, 
the  Chinese  authorities  persistently  demanded,  and  the 
British  community,  with  equal  obstinacy,  refused,  the 
surrender  of  the  wounded  seamen  of  the    Topaze  for  ex- 

1  Institutes  of  the   Tsing   Dynasty,   Digest    (Ta-Tsing-Hui-Tien-Shi- 
Li),  cliap.  840. 

'  Aiiber,  China,  p.  2Q7. 


20/]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     85 

amination,  and  in  consequence  of  this  unyielding  resist- 
ance on  the  part  of  the  British,  no  proceedings  of  any 
kind  with  a  view  to  the  determination  of  the  guilt  or 
innocence  of  the  English  marines  were  held.  The  sea- 
men never  appeared  before  a  Chinese  court,  nor  did  they 
enter  a  plea  of  any  kind.  The  so-called  plea  of  self- 
defence  was,  in  this  case,  merely  the  averment  of  an 
interested  third  party,  consisting  of  the  select  committee 
and  the  captain  of  the  Topaze,  in  pretended  justification 
of  certain  acts  committed  by  their  countrymen.  There- 
fore, to  declare,  under  such  circumstances,  that  the  plea 
was  rejected,  is  tantamount  to  an  advocacy  of  the  taking 
of  justice  into  one's  own  hands,  and  to  a  denial  of  the 
necessity  of  having  law,  court,  trial,  judgment;  in  short, 
of  maintaining  the  machinery  of  justice,  in  criminal  cases. 
With  regard  to  the  alleged  failure  of  the  Chinese 
authorities  to  accord  foreign  offenders  the  benefit  of  the 
distinction  recognized  by  the  Chinese  law  between  ac- 
cidental and  wilful  homicide,  the  select  committee,  in 
making  the  charge,  gave  expression  not  only  to  its  own 
misapprehension  but  that  of  the  other  classes  of  British 
subjects  in  China.  Sir  John  F.  Davis,  one  time  British 
plenipotentiary  to  China  and  governor  of  Hongkong, 
made  a  similar  statement.  After  reproducing  in  full  the 
"  fundamental  maxim  of  Chinese  intercourse  with  for- 
eigners," said  to  have  been  accurately  translated  by 
Pere  Premare,  and  invariably  quoted  with  implicit 
credence  by  a  certain  class  of  western  writers  on  China, 
Sir  John  Davis  remarked :  "  It  was  on  this  principle 
that  all  the  benefits  of  Chinese  law  were  (before  the  war) 
denied  to  strangers,  and  that,  in  the  case  of  even 
accidental  homicide,  they  were  required  to  be  delivered 
up,  not  for  trial,  but  execution."' 

1  China  and  the  Chinese,  i,  p.  54. 


86  THE  STATUS  OF  ALIENS  IN  CHINA  [208 

These  two  passages  reflect  the  general  and  probably 
sincere,  but  certainly  erroneous,  notion  on  the  part  of 
the  foreigners  at  Canton  that  an  alien  charged  with 
homicide  could  not  expect  to  save  his  life  in  a  Chinese 
court,  and  that  Chinese  judges,  when  they  came  to  try 
him,  would  put  aside  all  the  principles  and  rules  of  law 
and  justice,  and  hurry  him  to  the  execution-ground, 
whatever  the  facts  of  his  case  might  be.  It  is,  doubtless, 
true  that  cases  had  occurred  in  China  in  which  death 
sentence  was  actually  executed  on  aliens  convicted  of 
felonious  homicide,  in  accordance  with  Chinese  law,  but 
this  bare  fact  shows  no  more  denial  of  justice  than  the 
innumerable  cases  of  capital  punishment  taking  place  in 
all  the  other  countries  in  the  world.  Moreover,  instances 
were  not  wanting,  nor  even  rare  when  compared  with 
the  total  number  of  cases  of  homicide  by  foreigners  that 
arose  in  China,  in  v^hich  a  Chinese  had  been  killed  by  an 
alien  and  the  alien  offender  was  acquitted  by  the  Chinese 
authorities  on  the  sole  ground  that  the  homicide  com- 
plained of  was  unintentional  on  his  part,  or  purely  acci- 
dental. Thus  in  a  case  in  1689,  ^^^  which  some  sailors  of 
the  Company's  ship  Defence  killed  a  Chinese  at  Wham- 
poa,  the  local  government  merely  ordered  them  to  pay 
an  indemnity  of  5,000  taels; — to  which,  by  the  way,  Cap- 
tain Heath  objected,  and  after  making  a  counter  offer  of 
2,000  taels,  and  finding  it  to  be  unacceptable  to  the 
authorities,  he  left  Canton  with  his  ship.'  In  1722,  the 
gunner's  mate  of  the  King  Geo7-ge,  while  in  a  boat,  fired 
at  a  bird  in  a  paddy-ground  and  thereby  mortally  wounded 
a  boy  who  was  reaping;  but  the  local  authorities,  instead 
of  sentencing  him  to  death,  acquitted  him  on  payment  of 
2,000   taels   for   the   benefit   of   the   deceased's   parents.' 

'  Auber,  China,  p.  149.  ^  Ibid.,  p.  157. 


209]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     87 

Again,  the  Frenchman  who  killed  an  English  sailor  in 
an  affray  at  Whampoa  in  1754  and  whom  the  Chinese 
officials  placed  on  trial  before  them  on  the  most  insistent 
demand  of  the  British  traders,  though  he  confessed 
himself  guilty  of  murder,  was  released  the  following  year 
under  a  general  act  of  imperial  grace.'  Once  again,  the 
case  of  Edward  Sheen  in  1807  constituted  another  not- 
able instance  of  the  full  extension  to  foreign  offenders  of 
the  benefit  of  the  distinction  maintained  in  the  Chinese 
law  between  intentional  and  accidental  homicide ;  for  in 
that  case  Sheen,  though  he  was  admittedly  the  most 
serious  offender  in  an  affray  in  which  two  Chinese  were 
killed,  was  acquitted  in  1808,  after  paying  the  regular  fine 
of  12.42  taels,  on  the  expressly  stated  ground  that  the 
homicide  with  which  he  had  been  charged  was  accidental. 

Besides  these  two  allegations  of  indiscrimination  in  the 
Chinese  law  between  intentional  and  unintentional  killing, 
and  discrimination  against  foreigners  in  its  enforcement, 
a  third  count  in  the  indictment  against  the  Chinese  law 
was  that,  even  as  it  stood,  it  was  too  harsh  and  severe 
in  the  punishments  which  it  prescribed,  especially  for 
offences  against  the  person.  As  regards  this  charge, 
two  observations  may  be  made. 

In  the  first  place,  the  harshness  of  the  law,  as  repre- 
sented in  the  scale  of  punishments  it  embodies,  is  more 
important  than  real.  Sir  Chaloner  Alabaster,  at  one 
time  British  consul-general  in  China,  observes  in  his 
"Notes  and  Commentaries  on  Chinese  Law:"  "In  re- 
gard of  capital  sentences,  it  is  to  be  noted  that  the  sen- 

'  Davis,  China,  i,  p.  47.  As  one  instance  contradicting  the  alleged 
maxim  of  Chinese  intercourse  with  foreigners  as  translated  by  Pere 
Premare,  it  may  be  pointed  out  that  after  the  case  of  1754,  as  a  means 
of  preventing  further  disturbances  at  Whampoa,  Dane's  Island  was 
allotted  to  the  English,  and  French  Island  to  the  French  sailors,  for 
purposes  of  recreation.     Ibid. 


88  THE  STATUS  OF  ALIENS  IN  CHINA  [210 

tence  of  death,  though  recorded,  is  in  innumerable  cases 
commuted  as  of  course  to  terms  of  penal  servitude,  trans- 
portation to  lesser  or  greater  distances  from  the  offend- 
er's native  place,  imprisonment,  or  even  fine."'  In  the 
same  work.  Sir  Chaloner,  after  a  comparison  of  the  pun- 
ishments recorded  in  the  law  and  those  actually  enforced 
in  practice,  concludes  with  this  significant  remark:  "In 
general,  then,  the  Chinese  system  may  be  characterized 
as  less  Draconian  than  our  own."  '  Sir  George  Staunton, 
who  translated  the  Chinese  Penal  Code,  in  discussing  the 
punishment  of  culpable  homicide  under  the  Chinese  law, 
states:  "When  there  are  no  circumstances  of  peculiar 
aggravation,  the  sentence  is  usually  mitigated  in  practice 
one  degree;  and  thus  the  murderer  only  suffers  death  by 
being  strangled ;  and  the  offender  guilty  of  manslaughter 
is  banished."  3  In  his  preface  to  the  translated  Code, 
Sir  George,  in  enumerating  the  objects  underlying  it, 
remarks:  "Another  object  which  seems  to  have  been 
very  generally  consulted  is  that  of  as  much  as  possible 
combining,  in  the  construction  and  adaptation  of  the 
scale  of  crimes  and  punishments  throughout  the  Code, 
the  opposite  advantages  of  severity  in  denunciation  and 
leniency  in  execution."*  In  the  same  part  of  his  work 
he  refers  to  a  book  of  drawings  then  just  published  in 
England  under  the  title  of  "  Punishments  of  China,"  and 
observes  that  "  the  fancy  of  the  painter  has  given,  in 
some  instances,  a  representation  of  cruelties,  and  of  bar- 
barous executions,  which  it  would  be  very  erroneous  to 
suppose  have  a  place  in  the  ordinary  course  of  justice." 
Continuing,  he  states:  "Thus,  also,  although  every  page 

•  Edition  of  London,  1899,  p.  Ixv.  '  Ibid.,  p.  Ixviii. 
^Notices  of  China,  p.  412. 

*  Penal  Laws  of  China,  p.  xxvii. 


21 1  ]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     89 

of  the  following  translation  may  seem  at  first  sight  to 
bear  testimony  to  the  universality  of  corporal  punish- 
ments in  China,  a  more  careful  inspection  will  lead  to  a 
discovery  of  so  many  grounds  of  mitigation,  so  many 
exceptions  in  favor  of  particular  classes,  and  in  consider- 
ation of  particular  circumstances,  that  the  penal  system 
is  found,  in  fact,  almost  entirely  to  abandon  that  part  of 
its  outward  and  apparent  character."  ' 

The  second  observation  is  that  the  penal  laws  of  China, 
as  enforced  in  the  eighteenth  and  the  first  part  of  the 
nineteenth  century,  were  no  severer  than  those  in  force 
in  England  during  the  same  period.  Independently  of 
Sir  Chaloner's  opinion,  which  has  already  been  noted, 
that  the  former  were  in  fact  less  Draconian  than  the 
latter,  it  will  be  interesting  briefly  to  examine  into  the 
character  of  parliamentary  legislation  of  the  time  on 
criminal  matters.  Blackstone,  speaking  of  the  frequency 
of  capital  punishment  found  in  the  English  law  of  his 
day,  made  this  remark:  "It  is  a  melancholy  truth,  that 
among  the  variety  of  actions  which  men  are  daily  liable 
to  commit,  no  less  than  an  hundred  and  sixty  have  been 
declared  by  act  of  parliament  to  be  felonious  without 
benefit  of  clergy ;  or,  in  other  words,  to  be  worthy  of 
instant  death."  ^  Within  these  160  capital  offences  were 
included  such  acts  as  the  appearance  of  persons  armed 
or  with  their  faces  blacked,  or  otherwise  disguised,  in  a 
forest,  or  a  warren,  or  a  high  road,  or  a  common,  or  a 
down,  or  a  place  where  rabbits  were  kept.^  As  Stephen 
observes,  "the  legislation  of  the  eighteenth  century  in 
criminal  matters   was  severe  to  the  highest  degree,  and 

^  Penal  Laws  of  China,  p.  xxvi. 

*^  Commentaries  (ed.  of  1769),  18. 

'  Black  Act,  1722,  9  George  i,  c.  27. 


go  THE  STATUS  OF  ALIENS  IN  CHINA  [212 

destitute  of  any  sort  of  principle  or  system."'  As  late 
as  1827  an  act  of  Parliament  re-enacted  the  punishment 
of  death  for  such  acts  as  sacrilege,  stealing  the  value  of  £5 
in  a  dwelling  house,  and  stealing  horses,  sheep,  or  other 
cattle.^  Capital  punishment  for  letter-stealing  was  not 
abolished  until  1835, ^  ^"^^  ^^^  attempts  to  kill,  not  until 
1861/ 

Similarly,  as  to  the  taunt  of  the  British  merchants  in 
China  against  the  use  of  torture  in  Chinese  courts,  it 
may  be  pointed  out,  aside  from  the  circumstances  that 
no  case  appears  in  records  showing  the  infliction  of 
such  pains  on  foreign  culprits  during  the  period  now 
under  consideration,  that  the  same  means  of  compelling 
confession  in  criminal  cases  was  in  vogue  in  English 
courts  until  1722,  when  Parliament  enacted  ^  that 
"standing  mute"  should  be  considered  as  equivalent  to 
a  plea  of  guilty ;  and  that,  further,  the  presumption  of 
innocence  in  favor  of  the  accused  was  not  introduced 
into  the  English  jurisprudence  until  1827.^ 

The  doctrine  of  extensive  responsibility  upheld  by  the 
Chinese  law  in  criminal  matters  was,  too,  not  infrequently 
pointed  to  with  a  finger  of  scorn  as  another  of  its  objec- 
tionable features,  constituting  in  the  minds  of  the  British 
an  added  reason  for  their  refusal  to  place  themselves 
under  its  sway;  and  instances  were  recounted  in  which 
the  trade  of  the  entire  nation  had  been  stopped  by  the 
Chinese  authorities  on  account  of  the  commission  of  a 

'  I  Hist,  of  Cnntinal  Law  of  England  (London,  1883),  p.  471. 
"  7  &  8  Geo.  4,  c.  29 ;  i  Stephen,  Hist,  of  Cr.  Lau',  etc.,  p.  473. 
'  5  &  6  Will.  4,  c.  81 ;  I  Stephen,  p.  474. 

*  Consolidated.  Acts  of  1861  (24  &  25  Vict.),  ss.  96-100;  i  Stephen. 
475- 

*  12  Geo.  3,  c.  20;  Morse,  Int.  RcL,  p.  113. 

•-  &  8  Geo.  4,  c.  28;  Morse,  Int.  Rel..  p.  113. 


213]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     91 

criminal  act  by  one  of  its  subjects.  In  respect  of  this 
objection  it  may  be  admitted  that  the  doctrine,  as  it 
stood,  was  not  altogether  desirable  or  defensible,  and 
that  the  stoppage  of  trade  had  too  often  been  threatened 
or  enforced  by  the  local  government  at  Canton  as  a 
weapon  to  coerce  the  British  community  into  submission 
to  the  rule  of  the  Chinese  law.  But  at  the  same  time  it 
will  be  noted  that  as  a  matter  of  fact  no  case  appears  to 
have  occurred  in  which  one  British  subject  had  been 
punished  for  a  crime  committed  by  another,  nor  had  the 
whole  community  been  punished  on  such  a  ground ;  the 
practice  of  suspending  trade  was  pursued  by  the  Chin- 
ese, not  as  a  penalty  inflicted  upon  the  trade  of  the  entire 
nation  for  the  acts  of  one  of  its  individuals,  but  for  a 
wholly  different  purpose.  It  was  resorted  to,  not  as  an 
application  of  the  doctrine  of  conjoint  responsibility,  but 
merely  as  a  means  to  vindicate  the  honor  of  the  law 
necessitated  by  the  peculiar  circumstances  under  which 
the  foreign  trade  at  that  time  was  prosecuted,  and  by 
the  still  more  peculiar  attitude  and  policy  pursued  by 
the  British  in  regard  to  cases  in  which  their  own 
countrymen  were  culpably  involved. 

Thus  in  the  first  place,  the  British  merchants,  as  w^ell 
as  those  of  other  nations,  were  segregated  from  the 
local  populace,  and  lived  in  a  factory.  Secondly,  for 
convenience's  sake,  the  factory  chief  was  always  recog- 
nized by  the  authorities  as  the  medium  of  communi- 
cation in  matters  concerning  his  countrymen,  just  as  the 
Cohong  was  made  their  own  spokesman.  Thirdly,  the 
difficulty  which  the  Chinese  officers  experienced  in 
understanding  the  foreign  language  had  developed  a 
habit  of  depending  upon  the  factory  chief,  in  a  case  of 
offence  committed  by  one  of  his  nationals,  for  assistance 
in  arresting  the  right  person.     Fourthly,  in  the  case  of 


92  THE  STATUS  OF  ALIENS  IN  CHINA  [214 

the  British  merchants,  the  East  India  Company  being 
known  as  entitled  to,  and  actually  enjoying,  a  monopoly 
of  the  British  trade  in  China,  and  always  asserting  the 
privilege  of  controlling  all  the  British  subjects  engaged 
in  such  trade,  the  Chinese  authorities  not  unnaturally 
looked  upon  every  British  subject  in  China  as  an  em- 
ployee or  agent  of  the  Company,  and,  therefore  to  that 
extent,  looked  to  the  select  committee  as  having  an 
authority  over  him.  Finally,  the  attitude  of  the  select 
committee  toward  Chinese  laws  had  always  been  defiant, 
and  its  policy  had  invariably  been  to  shelter  British 
offenders  in  China  from  arrest  or  surrender  to  the  local 
government  ;  and  such  contumacy  on  the  part  of  the 
committee,  by  reason  of  the  power  and  strength  behind 
it,  had  proved  more  or  less  an  insuperable  obstacle  in 
the  way  of  enforcing  Chinese  law  and  justice.  It  was 
under  these  circumstances  that  the  Chinese  rulers  fre- 
quently stopped  or  threatened  to  stop  the  British  trade 
in  cases  where  crimes  committed  by  British  subjects 
were  not  avenged  by  law ;  and  the  object  of  such 
coercion  is  thus  clearly  seen  to  have  been,  not  to  punish 
the  entire  British  community  for  whatever  offence  one 
of  its  members  may  have  committed,  as  should  have 
been  the  case  if  the  doctrine  of  conjoint  responsibility 
had  been  applied  to  it,  but  rather  to  bring  pressure  to 
bear  upon  the  select  committee,  who  as  a  responsible 
agent  of  the  Company  was  necessarily  interested  in  the 
continuance  of  the  trade,  to  withdraw  its  unlawful 
support  from  the  British  culprit  and  surrender  him  for 
trial  in  a  Chinese  court  of  justice. 

Lastly,  a  standing  objection  raised  by  the  British 
merchants  at  Canton  to  the  Chinese  judicial  system  in 
defence  of  their  policy  of  non-submission,  was  the 
alleged    maladministration    of    justice     in     the     Chinese 


215]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     93 

courts.  That  some  irregularity  existed  in  the  Chinese 
courts  of  the  time  is  not  impossible  nor  improbable,  as 
all  human  institutions,  wherever  they  may  be  found, 
must,  from  their  very  nature,  be  imperfect.  But  between 
this  admission  and  the  inference  that  justice  was  not 
obtainable  in  China  there  is  evidently  a  wide  margin  of 
difference.  In  the  absence  of  evidence  establishing  its 
truth,  the  vague  allegation  may  safely  be  considered  to 
have  been  due  to  suspicions  born  of  a  want  of  familiarity 
on  the  part  of  foreigners  generally  with  the  process  of 
administering  justice  in  China,  and  of  their  well-known 
as  well  as  characteristic  contempt  of  Chinese  laws, 
rather  than  to  have  been  founded  upon  substantial  facts. 
Moreover,  a  great  many  of  the  cases  given  in  the  pre- 
ceding pages,  particularly  those  of  accidental  homicide, 
seem  to  show  that  as  a  rule  justice  was  done  to 
foreigners  wherever  it  w-as  due  them.  Even  such  a 
severe  critic  of  Chinese  laws  and  institutions  as  Sir 
George  Staunton  saw  fit,  indeed,  to  make  this  observa- 
tion on  the  Chinese  judicial  system  : 

That  the  laws  of  China  are,  on  the  contrary,  very  frequently 
violated  by  those  who  are  their  administrators  and  g-uardians. 
there  can,  unfortunately,  be  no  question;  but  to  what  extent, 
comparatively  with  the  laws  of  other  countries,  must  at  pres- 
ent be  very  much  a  matter  of  conjecture;  at  the  same  time  it 
may  be  observed,  as  something-  in  favor  of  the  Chinese  sys- 
tem, that  there  are  very  substantial  grounds  for  believing, 
that  neither  flagrant,  nor  repeated  acts  of  injustice,  do,  in 
point  of  fact,  often,  in  any  rank  or  station,  ultimately  escape 
with  impunity." 

^  Penal  Laws  of  China,  p.  xxviii.  In  the  face  of  this  statement  of 
Sir  George's  alone,  the  following  observation  recorded  by  an  ordinar- 
ily fair  writer  on  China  seems  to  be  an  unnecessarily  severe  stricture  on 
the  Chinese  magistracy  and  judiciary:  "With  'reason'  on  their  lips 
and  the  keen  desire  for  gain  in  their  hearts,  their  judgment  was  at  the 


94  THE  STATUS  OF  ALIENS  IN  CHINA  [216 

It  is  thus  seen  that  the  various  grounds  assigned  by 
the  British  at  Canton  in  defence  of  their  resistance  to  the 
course  of  Chinese  law  and  justice  were  generally  mis- 
taken or  exaggerated.  But  however  invalid  or  in- 
sufficient the  grounds  may  have  been,  the  fact  of  their 
resistance  to  authority  remains,  and  in  tracing  the 
origin  of  the  extraterritorial  system  in  China,  it  must  be 
carefully  noted. 

As  a  consequence  of  their  chosen  policy  of  non- 
submission  to  the  Chinese  criminal  jurisdiction,  the  con- 
dition of  British  merchants  became  a  constantly  pre- 
carious one,  and  their  trade  was  frequently  subjected  to 
interruptions  during  the  first  part  of  the  nineteenth 
century.  As  this  predicament  continued,  feelings  of 
embarrassment  and  anxiety  naturally  arose  in  the  minds 
of  the  British.  The  interpreter  of  the  English  factory  in 
1813  expressed  this  view  of  the  situation: 

The  peculiar  circumstances  under  which  foreigners  are  re- 
ceived in  China,  are,  in  fact,  such  that  the  body  or  nation 
suffers  from  individual  offences,  almost  equally,  whether  those 
offences  are  subject  to  punishment,  or  permitted  to  escape 
with  impunity.  The  latter  event  naturally  tends  to  render 
foreig-ners  objects  of  hatred  and  aversion,  while  the  former  in- 
variably entails  upon  them  humiliation  and  disgrace.' 

And  the  select  committee,  in  January,  1823,  when  the 
case  of  the  Topaze  was  still  pending  a  settlement,  con- 
cluded the  minutes  of  its  proceeding  on  the  matter  with 
this  pregnant  observation  : 

The  great  facility  which  foreigners  have  of  escaping  in  ships, 

disposal  of  the  long  purse,  but  subject  to  their  innate  conviction  that 
their  countrymen,  belonging  to  a  civilized  race,  must  be  in  the  right  as 
against  those  of  rude  and   unleUered  origin." — Morse,   Inlcrn.  Rei.  p. 
112. 
'  Staunton,  Notices  of  China,  p.  153. 


217]    'ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     95 

and  the  liability  of  the  whole  trade  to  suspension  therefrom, 
is  a  consideration  of  such  momentous  weight,  that  we  trust 
that  the  Honourable  Court  will  use  every  effort,  by  negoti- 
ation with  the  Chinese  and  by  laws  enacted  at  home,  to  put 
the  cases  of  homicide  on  such  a  footing  as  shall  prevent  em- 
barrassment to  the  trade/ 

§  5.  Establishment  of  a  British  Court  of  Jiistice  for  China 

in  1833 

So  long,  however,  as  the  East  India  Company  retained 
the  monopoly  of  the  British  trade  with  China,  there  was  no 
cause  for  serious  anxiety  on  the  part  of  any  British  resident 
at  Canton;  for  the  select  committee  as  the  representative 
of  the  Company,  with  its  powder  and  influence  derived  from 
the  magnitude  of  its  commercial  dealings,  was  always  able, 
on  one  hand  to  oppose  the  acts  of  the  local  government,  as 
one  of  its  agents  described,  "  with  considerable  success, 
and  in  a  manner  which  individuals,  pursuing  their  separ- 
ate interests,  and  unconnected  by  any  bond  of  union,  never 
could  have  attempted;"  -  and,  on  the  other,  by  virtue  of  its 
right  to  control  their  trade,  to  restrain  British  traders  from 
a  too  frequent  resort  to  open  violence.  But  when  in  1833 
the  Company's  charter  granting  a  monopoly  of  the  British 
trade  in  China,  was  about  to  expire,  and  vigorous  opposi- 
tion was  offered  to  its  renewal.  Sir  George  Staunton,  then 
a  member  for  Portsmouth  in  the  House  of  Commons  and 
a  veteran  advocate  of  the  Company's  monopolistic  inter- 
ests, seeing  that  the  hazardous  experiment  of  throwing 
open  the  China  trade  to  all  British  subjects  had  been 
irrevocably  determined  upon  by  the  legislature,  thought 
that  he  could  not  do  his  duty  to  his  country  better  than  by 
offering  such  suggestions  as  his  experience  in  China  had 
dictated,  "  for  diminishing  as  much  as  possible  that  hazard. 

1  Auber,  China,  p.  297.  2  Staunton,  Notices  of  China,  p.  *47. 


q6  the  status  of  aliens  in  china  [2i8 

and  carrying  out  the  experiment  with  the  best  prospect  of 
success."  '  The  suggestions  were  embodied  in  a  set  of 
nine  resolutions-  which  he  introduced  on  June  13,  1833, 
on  a  motion  to  resolve  the  House  into  a  committee  on  the 
Company's  charter.     Of  these  resolutions  the  sixth  reads: 

That  this  influence  of  the  Company  acquired  from  the  immense 
value  of  its  trade  being  the  sole  existing"  check  now  in  opera- 
tion for  the  control  and  counteraction  of  the  corrupt  local  ad- 
ministrators of  the  peculiarly  arbitrary  and  despotic  govern- 
ment of  China,  it  is  indispensably  necessary  to  the  security  of 
our  valuable  commerce  with  that  country,  that  whenever  any 
change  shall  be  made  in  the  British  commercial  system,  hav- 
ing the  effect  of  putting  an  end  to  this  influence,  an  equal  or 
greater  instrument  of  protection  be  at  the  same  time  created 
and  substituted  for  it,  under  the  sanction  of  a  national  treaty 
between  the  two  countries,  without  which  i)revious  sanction, 
any  attempt  to  appoint  national  functionaries  at  Canton  for 
the  protection  of  trade,  would,  in  the  present  state  of  our  re- 
lations with  China,  not  only  prove  of  little  advantage  to  the 
subject,  but  aho  be  liable,  in  a  serious  degree,  to  compromise 
the  honour  and  dignity  of  the  Crown. 

in  the  seventh  resolution  Sir  George  urged  that  there  was 
"  no  insurmountable  obstacle "  to  the  negotiation  of  a 
treaty  with  China  by  a  special  embassy,  and  in  the  eighth 
recommended,  as  the  last  resort,  and  in  the  event  of  a 
special  treaty  mission  being  found  unsuccessful,  the  plan 
"  to  withdraw  the  British  commerce  altogether  from  the 
control  of  the  Chinese  authorities,  and  to  establish  it  in 
some  insular  position  on  the  Chinese  coast,  where  it  may 
be  satisfactorily  carried  on,  beyond  the  reach  of  acts  of 
oppression  and  molestation,  to  which  an  unresisting  sub- 
mission would  be  equally  prejudicial  to  the  national  honor 

'  Staunton,  op.  cit.,  p.  *i4. 

^  18  Hansard's  Pari.  Debates  (1833),  698  :  Staunton,  Notices,  pp.  *44-50. 


219]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     gy 

and  the  national  interests  of  this  country."  The  last  reso- 
lution deals  solely  with  the  question  of  criminal  jurisdic- 
tion over  British  subjects  in  China.     It  reads  : 

Tliat,  lastly,  the  state  of  the  trade  under  the  operation  of  the 
Chinese  laws  in  respect  to  homicides  committed  by  foreigners 
in  that  country,  calls  for  the  early  interposition  of  the  Legfis- 
lature,  those  laws  being  practically  so  unjust  and  intolerable 
that  they  have  in  no  instance  for  the  last  forty-nine  years  been 
submitted  to  by  British  subjects;  great  loss  and  injury  to  their 
commercial  interests  accruing  from  the  suspension  of  trade  in 
consequence  of  such  resistance,  and  the  guilty  as  well  as  the 
innocent  escaping  with  impunity;  and  that  it  is,  therefore,  ex- 
pedient to  put  an  end  to  this  anomalous  state  of  the  law,  by 
the  creation  of  a  British  naval  tribunal  on  the  spot,  with 
competent  authority  for  the  trial  and  punishment  of  such 
ofifences. 

in  suggesting  such  a  novel  device  as  the  creation  of  a 
British  tribunal  in  a  foreign  state,  it  is  probable  that  Sir 
George  was  as  much  prompted  by  a  desire  to  defend  the 
Company's  policy  of  openly  defying  Chinese  authority  and 
jurisdiction  in  criminal  cases  involving  British  subjects  as 
by  a  feeling  of  anxiety  to  protect  the  national  honor  and 
interests  of  Great  Britain.  For  it  will  be  recalled  that 
Sir  George  was  always  a  loyal  and  able  agent  of  the 
Company  and  that  it  was  in  appreciation  of  the  part  he 
played  in  resisting  the  surrender  of  Edward  Sheen  in  1807 
that  he  was  appointed  by  its  authorities  interpreter  to  the 
select  committee  at  Canton,  which  marked  the  beginning 
of  close  connection  with  the  Company  and  its  interests. 
At  any  rate,  the  establishment  of  a  British  court  in  China 
was  destined  rather  to  increase  than  diminish  the  hazard 
to  the  British  trade;  for  as  will  presently  be  seen,  instead 
of  removing  an  old  source  of  friction  which,  as  the  result 
of  the  committee's  open   opposition  to   Chinese  law.   lay 


98  THE  STATUS  OF  ALIENS  IN  CHINA  [220 

hidden  in  every  criminal  case  wherein  the  offender  was  a 
British  subject,  it  introduced  a  new  and  more  permanent 
obstacle  in  the  course  of  Chinese  justice.  Moreover  it  also 
constituted  itself  an  object  of  dislike  equally  to  the  Chinese 
and  the  British :  to  the  former  as  a  standing  menace  to 
their  rightful  sovereignty  and  independent  jurisdiction,  and 
to  the  latter  as  a  symbol  of  unwarranted  interference  with 
their  accustomed  habits  of  life  in  China,  cherished  by  them 
all  as  being  essential  alike  to  their  personal  freedom  and 
their  commercial  prosperity.  Indeed,  this  flagrant  act  of 
infringement  of  the  Chinese  jurisdiction  contributed  no 
small  share  toward  rushing  the  two  countries  into  war 
with  each  other.  Bearing  in  mind  the  consequences  which 
it  brought  forth,  it  seems  clear  that  the  institution  of  a 
British  court  in  China,  as  suggested  by  Sir  George,  meant 
only  the  perpetuation  of  the  policy  of  defiance  to  Chinese 
jurisdiction,  and  as  such,  it  was  far  from  being  an  ex- 
pedient measure  to  relieve  the  British  trade  of  interrup- 
tions by  the  Chinese  rulers,  which  were  as  a  rule  deliber- 
ately invited  by  the  select  committee's  persistent  obstruc- 
tion of  the  course  of  Chinese  law  and  justice.  The  wisest 
step  for  the  purpose  in  view  would  have  been  to  do  what 
other  nations  represented  at  Canton,  such  as  France  and 
the  United  States,  had  done,  namely,  to  leave  the  British 
subjects  committing  crimes  in  China  to  be  punished  and 
protected  by  Chinese  law  and  courts.  To  say  the  least,  the 
measure  was  not  necessary,  inasmuch  as  cases  of  homicide 
involving  British  subjects  rarely  occurred,  the  total  num- 
ber of  such  cases  that  arose  in  the  century  preceding  the 
year  1833  "o^  being  more  than  half  a  dozen. 

Reverting  to  the  history  of  Sir  George's  resolutions  in 
Parliament,  it  may  be  noted  that  they  did  not  for  the  time 
being  receive  much  attention ;  in  fact  they  were  opposed  by 
Mr.  Grant,  the  President  of  the  India  Board,  who  disposed 


22 1  ]    ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION     gg 

of  them  "  in  a  summary  manner."'  ^  for  the  following  rea- 
sons : 

To  enter  into  a  negfotiation  as  preparatory  to  the  chang'e 
which  it  is  proposed  to  effect,  would,  I  think,  have  a  tendency 
to  create  much  embarrassment  and  g"reat  difficulty  in  the  way 
of  carrying-  that  change  into  operation.  I  think  if  we  do  not 
ourselves  sound  the  note  of  alarm,  the  Chinese  will  receive 
any  functionary  whom  we  may  appoint  as  the  representative 
of  the  British  nation  at  Canton,  without  any  of  the  suspicion 
and  distrust  which  the  formal  process  of  a  negotiation  would 
be  sure  to  awaken  in  the  minds  of  a  people  so  sensitive  and  so 
jealous;  and  that  the  ordinary  transactions  of  business  between 
them  and  us  would  proceed  with  little  or  no  interruption. 
Upon  these  g-rounds  I  am  decidedly  of  opinion  that  it  would 
be  anything  but  advisable  to  preface  the  proposed  change  of 
system  by  negotiation." 

On  the  basis  of  this  opinion,  the  resolutions,  which  had 
been  put  by  way  of  amendment,  were  negatived  in  the 
House  without  a  division.^ 

But  when  the  House  of  Commons  on  July  13,  1833,  re- 
solved that  "  it  is  expedient  to  regulate  the  Trade  of  China 
and  India,""*  and  ordered  a  special  committee  of  five  ^  to 
bring  in  a  bill,  Sir  George  again  urged  his  views  upon  the 
committee,  and  this  time  he  was  successful,  as  in  compliance 
with  his  request,  a  provision  authorizing  the  establishment 
of  British  courts  in  China  was  inserted  in  the  bill  drafted 
by  the  committee,  and  afterwards  presented  to  the  House 
on  July  I  under  the  title  of  "An  Act  to  Regulate  the  Trade 
to  China  and  India."     The  bill  passed  the  Commons  on 

^  Staunton,  Notices  of  China,  p.  *is. 

*  Mirror  of  Parlia>nent,  June  13,  1833;  quoted  in  Notices,  p.  *is. 
'  18  Hansard's  Pari.  Debates  (1833),  700. 

*  88  Journal  of  H.  Commons  (1833),  570. 

*  Francis  Baring,  Charles  Grant,  Steward  Mackenzie,  Robert  Gordon 
and  Thomas  B.  Macaulay. 


lOO  T^HE  STATUS  OF  ALIENS  IN  CHINA  [222 

August  13  without  debate,  though  on  the  preceding  day  Sir 
Robert  Inglis  expressed  a  doubt  that  the  agents  or  consuls 
provided  in  the  proposed  act  would  be  recognized  by  the 
Chinese  Government  and  stated  that  it  would  be  better  to 
have  had  some  previous  communication  with  it.^  When 
it  was  brought  before  the  Lords  on  August  20  for  the  third 
reading,  however,  objections  to  the  provision  now  under 
consideration  as  well  as  to  others  were  not  wanting,  though, 
it  is  true,  they  were  not  fatal  to  the  bill.  Viscount  Strat- 
hallan  opposed  the  provision  as  establishing  "  a  very  dan- 
gerous precedent  "  and  expressed  himself  as  being  confident 
that  the  Chinese  Government  "  would  never  suffer  the  es- 
tablishment of  Superintendents  or  consuls."  "  Lord  Ellen- 
borough  objected  to  the  institution  of  a  court  of  justice 
at  Canton  as  "  wholly  inapplicable  to  the  circumstances 
of  the  place  where  it  was  to  be  established.  Let  the  British 
Legislature,"  he  added,  "  arm  their  commissioners  with 
what  powers  for  the  execution  of  justice  they  might,  they 
would  be  wholly  inoperative  in  a  foreign  land,  even  to  com- 
pel witnesses  to  attend."  ''  Lord  Auckland,  in  support  of 
the  bill,  replied  that  "  as  to  the  Courts  of  Justice  they  would 
not  be  ordinarily  resorted  to,  and  the  most  effective  power 
was  that  of  refusing  permission  to  vessels  to  unload  until 
they  had  conformed  to  regulations."  ■*  However,  the  bill 
passed  the  Lords  on  August  22,  though  with  a  number  of 
amendments,  one  of  which  was  to  change  the  word  "courts" 
into  "  a  court."  "  The  Commons  agreed  to  the  modifica- 
tions and  it  became  an  act  of  Parliament  on  August  28, 

1833- 

As  the  "  rule  of  the  Company  "  was  to  terminate  on 

April  22,    1834.   the  act  of  August  28,   1833,"   sought  to 

'20  Hansard  (1833),  562.     Wbid.,  787.        '^  Ibid.,  788.     *  Ibid..  789- 

*65  Journal  of  H.  Lords  (1833),  607. 

•3  and  4  Will.  4,  c.  93;  20  Br.  and  For.  Slate  Papers  (1832-1833),  256. 


223]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    iqi 

provide  a  machinery  for  the  government  of  the  British  sub- 
jects in  China.  Section  5  of  the  act  entrusted  the  super- 
vision of  the  British  trade,  hitherto  controlled  by  the 
Company,  to  a  body  of  three  superintendents,  who  were  to 
reside  in  China.  Section  6,  authorizing  the  establishment 
of  a  British  court  in  China,  read : 

VI.  And  be  it  enacted,  that  it  shall  and  may  be  lawful  for  His 
Majesty,  by  any  such  Order  or  Orders,  Commission  or  Com- 
missions, as  to  His  Majesty  in  Council  shall  appear  expedient 
and  salutary,  to  give  to  the  said  Superintendents,  or  any  of 
them  Powers  and  Authorities  over  and  in  respect  of  the  Trade 
and  Commerce  of  His  Majesty's  Subjects  within  any  part  of 
the  said  Dominions  [of  the  Emperor  of  China];  and  to  make 
and  issue  Directions  and  Regulations  touching  the  said  Trade 
and  Commerce,  and  for  the  government  of  His  Majesty's 
subjects  within  the  said  Dominions:  and  to  impose  penalties, 
forfeitures,  or  imprisonments  for  the  breach  of  any  such 
Directions  or  Regulations,  to  be  enforced  in  such  manner  as 
in  the  said  Order  or  Orders  shall  be  specified:  and  to  create 
a  Court  of  Justice  with  Criminal  and  Admiralty  Jurisdiction 
for  the  trial  of  offences  committed  by  His  Majesty's  Subjects 
within  the  said  Dominions,  and  the  Ports  and  Havens  thereof, 
and  on  the  high  seas  within  100  miles  of  the  Coast  of  China; 
and  to  appoint  one  of  the  Superintendents  hereinbefore  men- 
tioned to  be  the  Officer  to  hold  such  Court,  and  other  Officers 
for  executing  the  Process  thereof:  and  to  grant  such  Salaries 
to  such  Officers  as  to  His  Majesty  in  Council  shall  appear 
reasonable.' 

In  section  8  it  was  provided  that  for  the  purpose  of  defray- 
ing the  expenses  of  the  new  establishments  in  China  a  ton- 
nage tax  might  be  levied  on  the  vessels  and  goods  belonging 
to  any  British  subject  entering  any  port  or  place  where  the 
superintendency  should  be  stationed. 

1  0/>.  cit. 


I02  THE  STATUS  OF  ALIENS  IN  CHINA  [224 

In  pursuance  of  the  act  several  Orders  in  Council  were 
issued  on  December  9,  1833.  One  of  them  authorized  the 
superintendency  to  supervise  the  British  trade  in  China 
Another  ordered  a  court  of  justice  with  the  jurisdiction 
as  prescribed,  "to  be  holden  at  Canton,  in  the  said  Domin- 
ions, or  on  any  British  ship  or  vessel  in  the  Port  or  Harbor 
of  Canton;"  and  it  further  provided  that  "  the  practice  and 
proceedings  of  the  Court,  upon  the  trial  of  all  issues  of 
fact  or  law,  to  be  joined  upon  any  indictments  or  infor- 
mations to  be  therein  brought  or  prosecuted,  shall  be  con- 
formable to,  and  correspond  with  the  practice  and  pro- 
ceedings of  the  Courts  of  Oyer  and  Terminer  and  Gaol  de- 
livery in  England;"  proper  regard  being  given  to  the  dif- 
ference of  local  conditions.^  The  third  imposed  a  tax  of 
2  shillings  per  ton  on  vessels  and  7  shillings  for  every  f  100 
of  the  value  of  goods  to  be  determined  by  their  market 
price  at  Canton ;  - — which  order,  however,  being  found 
impracticable,  was  revoked  by  another  of  March  5,  1834, 
after  which  the  expenses  of  the  superintendency  were  to  be 
paid  one-third  by  India  and  two-thirds  by  Great  Britain.^ 
On  December  10,  1833,  three  "  Superintendents  of  the 
Trade  of  British  Subjects  in  China  "  were  appointed  with 
William  John,  Lord  Napier,  as  the  chief.* 

Thus  a  curious  but  apparently  comprehensive  set  of 
machinery  was  provided  by  Great  Britain  for  the  govern- 
ment of  her  subjects  in  China;  and  it  was  natural  on  her 
part  to  expect  that  in  providing  it  she  had  done  her  best, 
and  that  it  ought  to  work  well,  if  for  no  other  reason  than 
as  a  fair  return  for  her  labors.     But  no  previous  consent 

'20  Br.  and  For.  State  Papers  (1832-1833),  262. 

*  Ibid.,  264. 

•22  Br.  and  For.  State  Papers  (1833-1834),  1235. 

*  Ibid.,  1228. 


225]  O^^^^^  OP  EXTRATERRITORIAL  JURISDICTION    103 

to  the  innovations  introduced  into  China  having  been  ob- 
tained from  the  Emperor,  there  were  in  the  way  of  putting 
them  into  operation  obvious  difficulties,  which  Lord  Napier, 
keen  and  able  as  he  was,  was  not  especially  trained  to  over- 
come. The  powers  which  were  conferred  on  the  chief 
superintendent,  by  reason  of  the  uncertain  ground  upon 
which  they  were  asserted,  were  necessarily  vague  and  ill- 
defined,  and  when  placed  in  the  hands  of  such  an  impetuous 
character  as  Lord  Napier,  a  soldier  by  profession,  they  be- 
came at  once  an  object  of  jealousy  and  a  source  of  peril. 
When  Lord  Napier  arrived  in  China,  he  at  once  proceeded 
to  Canton,  and  reaching  the  city  on  July  25,  he  dispatched 
a  letter  to  the  viceroy,  not  through  the  recognized  medium, 
of  the  hong  merchants,  but  by  a  special  delegation.  His 
message  was,  of  course,  rejected;  and  the  hong  merchants, 
being  held  responsible  by  the  viceroy  for  the  British  super- 
intendent's conduct,  urged  him  to  leave  for  Macao,  and  fol- 
low the  customary  path  of  seeking  official  recognition.  To 
this  advice,  the  British  representative  replied  that  he  would 
remain  in  the  Chinese  city  and  communicate  immediately 
with  the  viceroy  ''  in  the  manner  befitting  His  Majesty's 
Commission  and  the  honor  of  the  British  Nation."  ^  From 
July  21  to  31,  the  chief  Provincial  authority  issued  four 
proclamations  urging  the  superintendent  at  once  to  return 
to  Macao  and  emphasizing  the  point  that  the  great  minis- 
ters of  the  Celestial  Empire  were  not  permitted  to  have 
private  intercourse  with  foreigners.  Considering  the  re- 
cognized rules  of  international  intercourse,  it  seems  that 
Lord  Napier  might  well  have  accepted  the  viceroy's  ex- 
hortation, inasmuch  as  his  position  in  China  was  no  more 
than  what  one  of  his  contemporary  countrymen  states : 

It  is  a  well-understood  principle  of  international  law,  that  no 
'  22  Br.  and  For.  State  Papers  (1833-1834),  1235. 


I04  THE  STATUS  OF  ALIENS  IN  CHINA  [226 

public  functionary  sent  to  another  state  can  claim  the  rights 
and  privileg^es  of  his  appointment  till  he  is  recognized.  As  a 
captain  in  the  British  service,  though  without  a  command, 
and  as  a  British  nobleman,  he  was  undoubtedly  entitled  to 
every  degree  of  respect  and  courtesy,  as  long  as  he  complied 
with  the  laws  and  regulations  of  the  country;  but,  owing  to 
the  unfortunate  omission  of  our  Government  to  apply  for, 
and  obtain  from  the  Chinese  authorities,  in  due  time,  his 
formal  recognition,  he  had  no  official  station,  or  public  privi- 
lege, in  China  whatever.' 

But  the  first  British  superintendent  was  apparently  not  much 
given  to  the  contemplation  of  the  refined  points  of  interna- 
tional usuages,  for  the  firm  refusal  of  the  Chinese  authori- 
ties to  receive  him  or  communicate  with  him  on  an  equal 
footing  served  only  to  remind  him  of  the  powers  which  he 
believed  had  been  vested  in  him  by  his  Government  and  of 
the  profession  to  which  he  belonged.  He  decided  to  use 
force  to  compel  a  recognition  by  the  viceroy  of  his  official 
position.  In  his  despatch  of  August  14,  1834,"  to  Viscount 
Palmerston,  he  recommended  the  following  measures  to 
his  Government: 

Looking,  now,  at  the  utter  imbecility  of  the  Government, 
and  the  favourable  disposition  of  the  People,  I  cannot  for  one 
moment  suppose,  that,  in  treating  with  such  a  Nation,  His 
Majesty's  Government  will  be  ruled  by  the  ordinary  forms 
prescribed  among  civilized  People,  .  .  . 

Our  first  object  should  be  to  get  a  ."settlement  on  the  same 
terms  that  every  Chinaman,  Pagan,  Turk,  or  Christian,  sits 
down  in  England.  This,  no  doubt,  would  be  a  very  stagger- 
ing proposition  in  the  face  of  a  Red  Chop,  but  say  to  the 
Emperor,  "  Adopt  this,  or  abide  the  con."=equences,"  and  it  is 
done.     Now,  "  abiding  consequences  "  immediately  presup- 

'  Staunton,  Notices  of  China,  p.  *i6. 

^■22  Br.  and  For.  State  Papers  (1833-1834),  1241. 


227]   O^^^^^  ^^^  EXTRATERRITORIAL  JURISDICTION    iq; 

poses  or  anticipates  all  the  horrors  of  a  bloody  war  against  a 
defenceless  people.  The  monopolists  would  cry  out:  but  I 
anticipate  not  the  loss  of  a  single  man:  and  we  have  justice 
on  our  side. 

The  Chinese  are  most  anxious  to  trade  with  us:  the  Tartar 
Viceroys  cannot  comprehend  it.  If  the  Emperor  refuses  our 
demand,  remind  him  he  is  only  an  intruder;  and  that  it  will 
be  his  good  policy  to  secure  himself  upon  his  throne  by  grati- 
fying the  wishes  of  his  People.  Remind  him  that  the  British 
traded  to  all  Ports  of  China  before  his  Dynasty  escaped  from 
the  wilds  of  Tartary:  and  that  even  one  of  his  early  fore- 
fathers, not  only  opened  all  his  Ports  to  Foreigners,  but  in- 
vited them  to  settle  and  spread  civilization  in  his  Empire. 
The  Chinese  all  read,  and  are  eager  for  information:  publish 
among  them  and  disseminate,  far  and  wide,  your  intentions — 
that  is,  all  your  intentions  both  towards  the  Government  and 
themselves.  Disclaim  every  view  of  conquest,  or  of  holding 
partial  possession  beyond  a  certain  time;  disturb  not  the  pas- 
sage of  their  Vessels,  or  the  tranquillity  of  their  Towns:  only 
destroy  their  Forts  and  Batteries  along  the  Coast,  and  on  the 
River  sides,  without  interfering  with  the  People.  Such  annoy- 
ance to  the  Batteries,  of  course,  only  to  be  carried  into  effect 
in  case  of  the  obduracy  of  the  Emperor.  Three  or  four 
Frigates  and  Brigs,  with  a  few  steady  British  Troops,  not 
Sepoys,  would  settle  the  thing  in  a  space  of  time  inconceiv- 
ably short. 

Such  an  undertaking  would  be  worthy  the  greatness  and 
the  power  of  England,  as  well  from  its  disinterestedness 
towards  other  Nations  as  from  the  brilliant  consequences 
which  must  naturally  ensue. 

To  these  spirited  suggestions  the  Duke  of  Wellington 
tersely  and  not  untiaturally  replied  in  February,  1835: 

It  is  not   by  force  and  violence  that  His  Majesty  intends  to 
establish  a  commercial  intercourse  between  his  subjects  and 
China:  but  by  the  other  conciliatory  measures  so  strongly  in- 
culcated in  all  the  Instructions  which  you  have  received.' 
'22  Br.  and  For.  State  Papers  (1833-1S34),  1263. 


Io6  THE  STATUS  OF  ALIENS  IN  CHINA  [228 

But  before  this  reminder  reached  him,  the  trade  had  al- 
ready been  stopped  in  the  August  preceding/  and  Lord  Na- 
pier had  put  his  miHtant  notions  into  practice.  In  Septem- 
ber he  sent  two  British  frigates  up  the  river  to  awe  the  Pro- 
vincial authorities  as  well  as  to  strengthen  his  own  foot- 
hold, but  what  puzzled  him  very  much  was  that  even  force 
was  of  no  avail  with  the  Chinese  on  this  occasion.  Besides 
the  fact  that  the  local  authorities  resisted  force  by  force, 
causing  many  to  be  killed  and  wounded  on  both  sides,  the 
chief  superintendent's  warlike  experiment  also  elicited  from 
the  viceroy  another  deprecatory  edict,  in  which  it  was 
stated : 

The  Celestial  Empire  cherishes  these  from  afar  virtuously. 
What  it  values  is  the  subjection  of  men  by  reason;  it  esteems 
not  awing  them  by  force.  The  said  Barbarian  Eye  has  now 
again  opposed  the  Laws,  in  commanding  the  Ships  of  War  to 
push  forward  into  the  inner  River:  and  in  allowing  the  Bar- 
barian forces  to  fire  guns,  attacking  and  wounding  our 
Soldiers  and  alarming  our  resident  People.  This  is  still  more 
out  of  the  bounds  of  reason,  and  renders  it  still  more  unin- 
telligible what  it  is  he  wishes  to  do.' 

'  The  viceroy's  proclamation  suspending  the  trade  in  part  reads :  "  It 
is  an  old  saying,  '  when  you  enter  the  frontiers,  inquire  respecting  the 
prohibitions.  When  you  enter  a  country,  inquire  into  its  customs.' 
The  said  Barbarian  Eye  having  been  sent  by  the  said  Nation's  King 
from  a  great  distance,  is  undoubtedly  a  man  who  understands  things ; 
but  his  having  precipitately  come  to  the  Provincial  City,  without  having 
made  a  full  report  of  the  circumstances  and  causes  of  coming  here, 
was  indeed  a  want  of  decorum.  .  .  .  To  refer  to  England,  should  an 
official  Personage  from  a  Foreign  Country  proceed  to  the  said  Nation 
for  the  arrangement  of  any  business,  how  could  he  neglect  to  have  the 
object  of  his  coming  announced  in  a  Memorial  to  the  said  Nation's 
King?  or  how  could  he  act  contrary  to  the  requirements  of  the  said 
Nation's  dignity,  doing  his  own  will  and  pleasure?" — 22  Br.  and  For. 
State  Papers,  1258. 

« Ibid.,  p.  1278. 


229]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    107 

Convinced  that  "  a  continuance  of  the  stoppage  of  the 
Trade  would  cause  great  injury  to  the  interests  of  the 
British  Merchants,"  Lord  Napier  removed  the  superin- 
tendency  to  Macao  on  September  26,  and  commercial  inter- 
course was  forthwith  reopened  by  the  Chinese  authorities. 
But  the  distress  occasioned  by  the  failure  of  his  mission, 
aggravated  by  a  previous  indisposition  and  the  wearing 
efifect  of  the  changed  climate,  ultimately  told  on  him  and  he 
died  in  Macao,  October  11,  1834. 

Sir  J.  Graham,  speaking  in  the  House  of  Commons,  July 
28,  1838,  on  the  policy  of  the  Government  concerning  its 
relations  with  China  in  1833,  summarized  his  observations 
on  the  career  of  the  first  British  superintendent  of  trade  in 
China  in  one  sentence.     He  said  that 

it  was  clear,  that  Lord  Napier  leaving-  this  country  with  an 
erroneous  impression  of  the  powers  entrusted  to  him,  did  so 
demean  himself  to  the  Chinese  authorities  as  seriously  to  en- 
danger our  commercial  relations  with  that  country,  and  ex- 
posed himself  to  such  annoyances  as  he  fully  believed  cost 
him  his  life.' 

As  may  be  inferred  from  what  has  been  said.  Lord 
Napier  did  not  have  an  opportunity  to  put  into  operation 
the  British  criminal  court  in  China  appointed  by  the  act  of 
August  28,  1833;  and  the  two  succeeding  chief  superinten- 
dents hesitated  to  exercise  a  too  vigorous  control  over  their 
countrymen,  who  were  accustomed  to  untrammeled  ways 
of  living.  Sir  John  F.  Davis,  who  succeeded  Lord  Napier, 
established  his  headquarters  in  Macao,  while  Sir  George 
Robinson,  Sir  John's  successor,  was  well  satisfied  with  re- 
maining on  board  a  cutter  among  opium-smuggling  ships, 
watching  the  progress  of  "  this  increasing  and  lucrative 
trade  "  and  trusting  to  the  "  prudence  and  integrity  "  of  the 

^44  Hansard  (1838),  750. 


I08  THE  STATUS  OF  ALIENS  IN  CHINA  [230 

smugglers  to  avoid  "  any  unfortunate  catastrophe."  Even 
when  one  Air.  [nnes.  a  British  trader,  who  had  some  of  his 
goods  seized  by  the  custom-house  for  a  breach  of  the  regu- 
lations, threatened  the  local  government  with  his  deter- 
mination to  procure  redress  by  himself  by  acts  of  reprisal 
against  the  Chinese  trade.  Sir  George  did  not  proceed  to 
bring  him  before  the  British  criminal  court  but  mildly  per- 
suaded him  not  to  carry  out  his  threatened  acts — acts  which, 
by  the  way,  the  law  olilicers  of  the  Crown  subsequently 
advised,  would,  if  carried  into  effect,  amount  to  piracy, 
"and  for  which  British  warships  "  will  be  bound  to  act  to- 
wards him  as  the  Naval  Instructions  require  Commanders 
of  His  Majesty's  ships  of  war  to  act  towards  pirates  whom 
they  may  meet  " — by  pledging  that  his  case  should  be  sub- 
mitted to  the  consideration  of  the  British  Government,  and 
that  the  recovery  of  his  property  should  be  made  the  sub- 
ject of  a  demand  on  the  Chinese  authorities  on  the  first 
occasion  of  the  superintendent  coming  into  formal  contact 
with  them.^ 

But  even  if  neither  opportunity  nor  inclination  on  the 
part  of  the  superintendents  had  been  wanting,  still  their 
task  of  deducing  from  their  instructions  a  definite  course 
of  action  as  to  the  question  of  jurisdiction  over  British 
subjects  in  China  would  have  been  very  difficult.  With  re- 
gard to  civil  matters  the  sign-manual  instructions  of  De- 
cember 31,  1833,  required  the  chief  superintendent  "by 
the  exertion  of  your  utmost  influence  and  authority,  to  ad- 
just by  arbitration,  or  persuasion,  all  disputes  in  which  any 
of  our  subjects  may  be  there  engaged  with  each  other,  or 
with  the  Inhabitants  of  China,  or  with  the  Subjects  or 
Citizens  of  any  Foreign  State;  and  to  mediate  between 
our  said  Subjects  and  Officers  of  the  Chinese  Government, 

'25  Br.  and  For.  State  Papers  (1836-1837).  420. 


231]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    109 

in  order  to  protect  our  Subjects  aforesaid  from  all  unlaw- 
ful exactions  or  hindrances  in  the  prosecution  of  their  com- 
mercial undertakings."  ^  In  conducting  such  mediation  the 
superintendent  was  further  required,  as  towards  the  Chinese 
authorities,  to  "  observe  all  possible  moderation  "  and  to 
"  cautiously  abstain  from  all  unnecessary  use  of  menacing 
language ;  or  making  any  appeal  for  protection  to  our  Mili- 
tary or  Naval  Forces,"  unless  in  cases  of  "  the  most  evi- 
dent necessity."  "  With  regard  to  offenses  committed  by 
British  subjects  in  China,  it  is  true  that  the  act  of  August 
28,  1833,  and  the  Orders  in  Council  of  December  9  of  the 
same  year  ordered  the  establishment  of  a  court  of  justice 
and  provided  certain  rules  for  the  trial  and  punishment  of 
British  offenders.  But  before  these  were  given  a  trial,  on 
January  25,  1834,  Viscount  Palmerston  sent  the  following 
instructions  to  the  chief  superintendent : 

With  respect  to  questions  of  Law,  the  Order  in  Council  ap- 
pears to  give  you  ample  instructions;  but  I  have  to  apprize 
your  Lordship,  that,  although  it  has  been  deemed  advisable 
at  once  to  constitute  a  Court  of  Justice,  A^et  it  is  His  Majesty's 
pleasure  that  you  should  not,  unless  in  case  of  absolute  neces- 
sity, commence  any  proceedings  under  such  Order  in  Council 
until  you  have  taken  the  whole  subject  into  your  most  serious 
consideration.  And  you  will,  in  the  meanwhile,  fully  report 
to  me,  for  the  information  of  His  Majesty's  Covernment,  the 
result  of  your  deliberation  upon  this  important  branch  of 
your  duties.^ 

The  obvious  reason  for  staying  the  operations  of  the  court 
would  seem  to  have  been  that  its  establishment  rested  on 
questionable  grounds  and  that  Lord  Palmerston  was  quite 
aware  of  the  circumstance,  feeling  probably  in  the  same  way 

'  22  Br.  and  For.  State  Papers  (1833-1834),  1229. 
*  Ibid.  ^ Ibid.,  1234. 


no  THE  STATUS  OF  ALIENS  IN  CHINA  [232 

as  later  did  Sir  J.  Graham,  who,  speaking  in  the  House  of 
Commons  on  April  7,  1840,  referred  to  the  clause  "  which 
was  inserted  according  to  the  recommendation  of  Sir  G. 
Staunton,  for  the  trial  of  British  subjects,  even  in  the 
waters  of  Canton,"  and  stated  that  he  might  appeal  to  his 
honorable  and  learned  friend,  the  judge  of  the  Admiralty 
Court,"  if  this  clause  was  not  at  least  straining  beyond  in- 
ternational law."  ^ 

And  yet  on  the  obligation  of  observing  the  Chinese  laws, 
the  same  instructions  of  December  31,  1833,  contain  this 
paragraph : 

And  We  do  require  you  constantly  to  bear  in  mind  and  to 
impress  as  occasion  may  offer,  upon  our  Subjects  resident  in, 
or  resorting:  to  China,  the  duty  of  conforming:  to  the  Laws 
and  usages  of  the  Chinese  Empire,  so  long:  as  such  Laws  shall 
be  administered  toward  you  and  them  with  justice  and  good 
faith  ;  and  in  the  same  manner  in  which  the  same  are  or  shall 
be  administered  towards  the  Subjects  of  China,  or  towards  the 
Subjects  or  Citizens  of  other  Foreign  Nations  resident  in,  or 
resorting  to  China.' 

When  Captain  Charles  Elliot  entered  upon  the  duties  of 
chief  superintendent  in  1836,  he  found  that  British  armed 
smuggling  boats  landed  in  front  of  the  custom-house,  and 
accordingly  he  undertook  to  issue  certain  directions  for  or- 
ganizing a  police  to  patrol  the  inner  waters  of  Canton.  On 
April  18,  1838,  he  sent  a  dispatch  to  the  Foreign  Office 
in  London  enclosing  a  copy  of  these  directions;  and  what 
was  the  reply  he  received?  Lord  Palmerston  instructed 
him  that  the  contents  of  his  dispatch  had  been  referred  to 
the  law  officers  of  the  Crown  to  determine  "  whether  these 
regulations  are  in  any  way  at  variance  with  the  laws  of 

'  53  Hansard  (1840),  676. 
22  Br.  and  For.  State  Papers  (1833-1834),  1229. 


233]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    m 

England,  or  inconsistent  with  the  territorial  rights  of 
China;"  that  according-  to  their  opinion,  the  regulations 
were  not  at  variance  with  the  laws  of  England,  if  they  had 
been  made  and  issued  by  Her  Majesty  according  to  section 
6  of  the  act  of  August  28,  1833,^  but  that  the  superintendent 
had  no  power  of  his  own  authority  to  make  them.  Con- 
tinuing, his  lordship  stated  : 

With  respect  to  the  territorial  rights  of  China,  the  law  officers 
are  of  opinion,  that  the  regulations,  amounting  in  fact  to  the 
establishment  of  a  system  of  police  at  Whampoa,  within  the 
dominions  of  the  Emperor  of  China,  would  be  an  interference 
with  the  absolute  right  of  sovereignty  enjoyed  by  independent 
states,  which  can  only  be  justified  by  positive  treaty,  or  im- 
plied permission  from  usage/ 

In  the  face  of  this  opinion,  the  police  regulations  were 
of  course  abandoned ;  instead,  ships  of  war  were  dispatched 
for  the  purpose  of  maintaining  order  among  the  crews  of 
the  British  merchantmen  frequenting  the  port  of  Canton, 
but  with  no  appreciable  effect.  The  attitude  of  the  British, 
like  other  foreigners,  became  more  defiant  to  the  Chinese 
authorities,  and  smuggling  began  to  prosper  as  if  under  the 
latter's  express  sanction.  On  the  conduct  of  the  English 
during  this  period  in  regard  to  opium  smuggling,  one  of  the 
superintendents  later  recorded  this  observation : 

The  total  amount  of  Eng"lish  smuggling  had  not  only  been 
much  less  during  the  administration  of  the  Company  at  Can- 
ton, but  they  had  the  power  and  the  means  of  effectually 
excluding  it  from  the  interior  of  the  Boca  Tigris,  and  confin- 
ing it  to  Lintin  and  the  coast.  In  this  manner,  however 
nefarious  the  nature  of  the  traffic,  and  however  corrupt  the 

*  3  &  4  Will.  4,  c.  93. 
"53  Hansard  (1840),  686. 


112  THE  STATUS  OF  ALIENS  IN  CHINA  [234 

officers  of  the  customs,  some  external  show  of  decency  at 
least  was  preserved.  But  on  the  subversion  of  the  long- 
established  system,  and  the  substitution  of  an  authority  whose 
powers  were  both  inadequate  and  imperfectly  defined,  it  was 
soon  discovered  that  license  was  imbounded,  and  impunity 
complete.' 

§  6.  Proposed  British  Legislation  of  18^8 

But  curiously  enough,  the  British  Government  in  the 
meantime,  while  hesitating  obviously  for  want  of  sanction 
in  international  law  to  make  use  of  one  judicial  institution 
already  provided  by  Parliament  to  be  established  in  China, 
urged  upon  the  legislators  in  1838,  with  all  its  strength,  the 
creation  of  another  with  even  greater  powers  and  jurisdic- 
tion. On  April  30.  1838,  Viscount  Palmerston  introduced 
in  the  House  of  Commons  "  a  bill  to  authorize  the  estab- 
lishing a  Court  or  Courts  with  Criminal  and  Admiralty 
and  Civil  Jurisdiction  in  China."  "  Of  this  bill  the  first 
two  provisions  read  : 

I.  Whereas  it  is  expedient,  with  a  view  to  the  preservation 
of  good  order  among  Her  Majesty's  subjects  trading  or  re- 
sorting to  the  dominions  of  the  Emperor  of  China,  and  for  the 
purpose  of  promoting  the  amicable  intercourse  between  such 
subjects  of  Her  Majesty  and  the  subjects  of  the  Emperor  of 
China,  and  also  for  the  prevention  of  disputes  by  which  such 
intercourse  might  be  interrupted,  that  a  British  Court  or 
Courts,  with  Criminal  and  Admiralty  and  Civil  Jurisdiction, 
should  be  established  in  the  said  dominions,  or  in  the  vicinity 
thereof ;  Be  it  therefore  Enacted  by  the  Queen's  most  Excel- 
lent Majesty  .  .  .  That  it  shall  be  lawful  for  Her  Majesty,  by 
Letters  Patent,  under  the  Great  Seal,  to  establish  a  Court  or 
Courts  of  Justice,  with   Criminal   and  Admiralty  and  Civil 

'  Davis,  China,  vol.  i,  p.  125. 
'  '^Z  Journal  of  H.  Commons,  476. 


235]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    113 

Jurisdiction  and  Authority,  within  any  part  of  the  dominions 
of  the  Emperor  of  China,  or  in  the  ports  or  havens  thereof,  or 
within  Three  Leag^ues  of  the  coast,  for  the  trial  of  all  offences 
committed  by  Her  Majesty's  subjects  within  the  said  domin- 
ions, or  in  the  ports  or  havens  thereof,  or  on  the  hig^h  seas, 
within  One  hundred  Miles  from  the  coasts  of  the  said  domin- 
ions ;  and  also  for  the  deciding-  of  all  civil  cases  which  shall 
be  brought  before  such  Court  or  Courts  on  any  subject,  mat- 
ter or  thing:  relating  to  trade  or  commerce,  arising  within  the 
jurisdiction  of  such  Courts,  with  right  of  appeal,  either  to  Her 
Majesty  in  Council,  or  to  any  of  Her  Majesty's  Supreme 
Courts  of  Justice  in  the  East  Indies,  as  Her  Majesty  may  be 
pleased,  by  any  Order  or  Orders  in  Council,  to  appoint ;  and 
it  shall  be  lawful  for  Her  Majesty  to  appoint  a  Judge  or 
Judges,  and  proper  Officers  for  such  Courts,  and  to  establish 
forms  of  proceeding  in  all  matters  criminal  and  civil  coming 
under  the  cognizance  of  such  Courts ;  and  also  by  any  Order 
or  Orders  in  Council  and  either  by  reference  to  the  provisions 
of  any  Act  or  Acts  now  in  force  for  administering  justice  in 
the  East  Indies,  or  otherwise,  as  may  be  necessary  or  expedi- 
ent, to  make  and  issue  any  rules,  regulations,  directions  and 
restrictions  touching  and  concerning  the  conduct,  rights  and 
duties  of  Her  Majesty's  subjects  trading  or  being  within  the 
jurisdiction  of  such  Courts,  and  touching  and  concerning  the 
exercise  of  such  Criminal,  Admiralty  and  Civil  Jurisdiction, 
with  a  view  to  the  enforcing  such  rules,  regulations,  directions 
and  restrictions  ;  and  it  shall  also  be  lawful  for  Her  Majesty, 
by  any  Order  or  Orders  in  Council,  to  authorize  the  sending 
out  of  the  limits  of  the  jurisdiction  of  the  said  Courts,  any 
person  who  violate  any  such  rules,  regulations,  directions  or 
restrictions  ;  and  it  shall  also  be  lawful  for  Her  Majesty,  by 
any  Order  or  Orders  in  Council,  to  impose  penalties,  for- 
feitures and  imprisonment  for  any  breach  of  such  rules,  regu- 
lations, directions  or  restrictions,  with  reference  to  any 
offences  or  cases  triable  by  such  Courts,  which  penalties,  for- 
feitures and  imprisonment  shall  be  enforced  in  such  manner  as 
in  the  said  Order  or  Orders  in  Council  shall  be  specified  ;  and 


114  THE  STATUS  OF  ALIENS  IN  CHINA  [236 

all  such  Orders  in  Council  shall  have  the  full  force  and  effect 
of  laws,  in  the  manner  as  if  they  were  enacted  in  and  made 
part  of  this  Act/ 

2.  A7id  ivhereas  cases  ma}'  arise  within  the  jurisdiction  of 
the  said  Courts  wherein  ihe  interposition  of  such  Courts  may 
be  required  by  the  subjects  of  F'oreign  Powers  trading-  to  the 
said  dominions,  or  by  the  subjects  of  the  Emperor  of  China, 
in  the  determination  of  differences  or  disputes  between  such 
persons  and  British  subjects  ;  Be  it  therefore  Enacted,  That 
it  shall  be  lawful  for  Her  Majesty,  by  any  Order  or  Orders  in 
Council,  to  make  and  issue  in  the  same  manner  as  aforesaid 
directions  and  regulations  for  the  guidance  of  such  Courts  in 
such  Cases.  ■'■^•"■I?^ 

In  the  remaining  sections  of  the  proposal  it  was  provided 
that  the  title  of  superintendent  should  be  changed  to  consul, 
in  W'hom  should  be  vested  all  the  pow-ers  exercised  by  the 
former;  and  that  so  much  of  the  act  of  1833  as  gave 
power  to  the  Crown  to  levy  tonnage  duties  on  British  ship- 
ping in  China  to  defray  the  expenses  of  the  superintendency 
and  the  court  should  be  repealed — a  provision  which  was 
perhaps  calculated  to  serve  as  an  inducement  to  win  the 
support  of  the  Opposition  for  the  bill  as  a  w^hole. 

For  unstated  reasons  the  second  reading  of  the  bill  was 
deferred  four  times  and  the  committee  on  the  same,  de- 
ferred twenty  times;  and  it  was  not  imtil  July  28,  that  the 
House  proceeded  to  resolve  itself  into  a  committee  there- 
on. Then,  on  a  motion  made  by  Viscount  Palmerston  to 
that  effect,  Mr.  Hawes  left  his  seat  and  said 

that  he  had  carefully  looked  over  the  papers,  the  noble  Lord 
had  laid  before  the  House,  and  he  could  not  discover  in  them 
the  smallest  trace  of  the  smallest  consent  on  the  part  of  the 
authorities  of  China  to  the  jurisdiction  proposed  to  be  given 
by  the  noble  Lord.     He  wished  to  ask  the  noble  Lord,  whether 

^Parl.  Papers,  1837-8,  vol.  i,  p.  i. 


237]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    n^ 

the  authorities  of  China  recogriized  this  interference  with  their 
laws?  The  noble  Lord  was  about  to  establish  a  court,  whose 
authority  he  could  not  enforce.  Suppose  a  Chinese  were  a 
defendant,  and  refused  to  appear,  a  verdict  was  g^iven  against 
him,  what  power  but  that  of  actual  force  could  execute  and 
enforce  the  jurisdiction  of  the  court? 

Here  Mr.  Hawes  recounted  a  noted  case  of  assault  and 
battery  on  a  Chinese  by  a  Lascar  on  a  ship  in  which  the 
Chinese  authorities  took  the  offender  into  custody  for  in- 
quiry and  refused  to  comply  with  the  demand  of  the  chief 
superintendent  for  his  surrender  to  be  tried  by  English 
laws,  and  justified  their  refusal  by  appealing  to  the  laws 
and  usages  in  European  coimtries,  such  as  France  for  in- 
stance, where  an  Englishman  would  be  held  amenable  to 
French  laws.     Continuing,  Mr.  Hawes  said : 

That  proved,  that  the  Chinese  well  understood  their  position, 
and  the  necessity  of  obtaining-  their  sanction  before  instituting" 
this  Court.  The  British  were  admitted  into  the  Chinese  terri- 
tory by  sufferance,  for  the  purposes  of  trade,  and  were  bound 
to  conform  to  Chinese  usages,  and  not  to  attempt  to  force 
their  own  customs  upon  the  Chinese.  In  case  this  measure 
was  adopted,  and  attempted  to  be  carried  into  effect,  we 
should  involve  our  commercial  intercourse  with  China  in  very 
considerable  danger.  The  provisions  of  this  bill  were  most 
extraordinary.  The  Orders  in  Council — virtually,  the  orders 
of  the  noble  Lord  (Palmerston) — were  to  have  the  force  of 
law,  and  were  to  be  coextensive  with  the  jurisdiction  of  the 
court  that  was  to  be  established.  The  East  India  Company 
carried  their  trade  without  the  aid  of  such  powers;  and  the 
Americans  conducted  their  commerce  with  China  without  any 
such  powers,  nay,  without  any  salaried  establishment  at  all; 
they  depended  on  the  simple  principles  of  trading— mutual 
and  reciprocal  benefit.' 

'  JJ  Hansard  (1S3S),  744. 


Il6  THE  STATUS  OF  ALIENS  IN  CHINA  [238 

The  speaker  concluded  with  moving  the  first  of  the  follow- 
ing resolutions  ^  prepared  for  the  occasion  and  presented 
by  Sir  George  Staunton : 

That  it  is  inexpedient  to  pass  any  Rill  for  the  establishment  of 
Courts  of  Civil  and  Criminal  Jurisdiction  within  the  Chinese 
territories,  until  satisfactory  evidence  shall  have  been  laid  on 
the  Table  of  this  House,  that  the  Court  of  Pekin  has  signified 
its  consent: 

That  any  attempt  to  establish  such  Courts  by  the  con- 
nivance, or  even  formal  consent  of  the  Local  Authorities, 
would  inevitably  lead  to  the  most  embarrassing  discussion  re- 
specting the  independence  and  jurisdiction  of  the  said  courts; 
and  that  it  appears  from  the  papers  laid  before  this  House, 
that  "  on  the  first  occasion  of  discussion  in  Canton,  it  may  be 
anticipated  that  no  alternative  will  remain  but  the  most  re- 
volting submission,  or  removal  from  the  port:" 

That  British  Courts  of  Civil  Jurisdiction  in  China,  unless 
distinctly  recognized  by  the  Chinese  Authorities,  would  be, 
in  an  especial  manner,  injurious  to  the  interests  of  British 
subjects  trading  in  that  country,  as  they  would  be  thereby 
liable  to  be  harassed  by  the  most  vexatious  prosecutions  on 
the  part  of  Chinese  plaintiffs,  while  they  would  be  wholly 
without  hope  of  redress  against  Chinese  defendants: 

That  with  a  view  to  the  prevention  of  recurrence  of  disputes 
in  China  in  case  of  homicides  committed  by  British  subjects, 
it  is  expedient  that  the  British  Superintendent  should  be  em- 
powered to  summon  a  Special  Court,  to  sit,  in  each  case,  on 
board  of  some  British  vessel  in  the  port  of  Canton,  or  its 
vicinity,  for  the  trial  and  punishment  of  such  offences. 

On  Captain  Alsager's  seconding  the  amendment  proposed 
by  Mr.  Hawes,  Lord  Palmerston  rose  in  defence  of  the 
bill,  stating  that  the  resolution  as  moved  applied  rather  to 
the  act  of  1833,  which  authorized  the  creation  of  a  court  of 

'  93  Journal  of  H.  Commons,  765. 


239]  O^^^^^  O^  EXTRATERRITORIAL  JURISDICTION    ny 

admiralty  and  criminal  jurisdiction  than  to  the  present  bill ; 
that  one  reason  for  his  proposing  the  latter  was  that  he 
thought  that  the  court  should,  in  addition  to  criminal  and 
admiralty  jurisdiction,  possess  civil  jurisdiction,  and  that 
it  was  doubtful  whether  this  could  be  effected  under  the 
act  of  1833,  in  view  of  its  apparent  limitations.  Neverthe- 
less, he  said  he  was  prepared  to  discuss  the  principle  of  the 
measure  he  had  proposed.  He  admitted  that  the  present 
might  be  called  an  exceptional  case  but  he  excused  himself 
on  the  ground  that  there  were  no  diplomatic  relations  with 
China,  and  that  another  embassy  to  obtain  them  would  be 
inexpedient.     He  continued : 

It  was  alleged  that  the  India  Company  had  no  such  Courts, 
but  that  they  had  a  power  and  authority  which  stood  in  lieu 
of  it.  Cases  unfortunately  arose,  in  which  offences  had  been 
committed  by  British  subjects  in  China,  and  the  surrender  of 
these  subjects  was  required,  and  the  Company  found  itself  in 
the  discreditable  dilemma  of  either,  on  one  hand,  surrender- 
ing a  British  subject  to  be  tried  by  courts,  in  which  justice 
was  openly  set  at  defiance;  or,  on  the  other  hand,  refusing-  to 
deliver  up  the  offender,  and  invest  him  with  impunity  for  his 
offence.  That  position  was  full  of  embarrassment,  and  it  was 
as  discreditable  to  the  character  of  the  Compan}^  as  it  was  to 
the  character  of  the  British  nation.  But  such  cases  happened. 
Then  came  the  embarrassment;  if  the  Chinese  g-overnment  had 
chosen  to  assert  its  rights,  and  resented  these  infractions  of  its 
acknowledged  jurisdiction,  they  would  have  stopped  the  trade, 
and  that  would  have  been  attended  with  great  loss.  The 
Company,  however,  in  more  than  one  instance,  risked  the 
loss  of  trade,  rather  than  be  the  instruments  of  committing 
legal  murder  on  the  subjects  of  this  country. 

He  would  admit  to  his  hon.  Friend  that  there  was  no  con- 
sent on  the  part  of  the  Chinese  authorities,  nor  could  they  ob- 
tain it  without  that  intercourse  which  it  w^as  impossible  in  the 
present    state   of   things  to   obtain.     But    the   question   was, 


Il8  THE  STATUS  OF  ALIENS  IN  CHINA  [240 

though  the  authorities  of  China  had  not  given  their  consent, 
whether  they  would  resent  such  an  interference  on  the  part  of 
this  country;  and  from  the  papers  that  had  been  laid  on  the 
table,  he  thougfht  it  clearly  appeared  that  they  would  not,  and 
that  there  was  every  probability  of  their  being  reconciled  to 
the  proposed  exercise  of  our  power. 

His  lordship  then  mentioned  the  name  of  Sir  George 
Staunton  as  his  authority  for  the  statement  that  virtually 
all  the  Chinese  laws  were  suspended  in  the  case  of  for- 
eigners, except  in  capital  offences,  so  that  there  was  "  noth- 
ing contained  in  the  bill  which  was  at  all  inconsistent  with 
the  present  practice,  and  the  acknowdedged  principles  of  the 
Chinese  people."     Continuing,  he  said: 

He  [Sir  George]  further  stated  in  his  book  that  a  foreigner 
who  had  committed  an  offence,  if  not  punished,  drew  down 
the  hatred  of  the  Chinese  upon  the  country  he  belonged  to: 
and  if  he  was  punished,  it  led  to  great  humiliation  and  dis- 
grace to  the  criminal's  countrymen.  It  was  impossible  for 
them  to  deliver  up  an  offender  who  was  sailing  for  China,  or 
was  resident  under  our  protection. 

Lord  Palmerston  referred  next  to  one  Mr.  Drummond  as 
stating  "  that  the  Chinese,  in  the  event  of  a  murder  or 
homicide,  would  put  to  death  any  person  delivered  up  to 
them  whether  guilty  or  innocent;  with  what  the  Chinese, 
indeed,  called  a  regular  trial,  but  which  was,  in  fact,  most 
irregular  and  unjust."     Then  he  proceeded  to  state  that — 

the  Chinese  held  the  Governments  of  foreign  countries  re- 
sponsible for  the  conduct  of  all  their  subjects  in  China.  Sir 
George  Staunton  stated,  that  the  Company's  servants  would 
be  held  responsible,  not  only  for  the  conduct  of  the  crews  of 
all  private  vessels,  but  also  for  all  the  crews  of  the  king's 
ships  there.  And  Sir  George  went  on  to  give  an  instance  of 
an  American,  who  being  given  up  to  the  Chinese  was  put  to 


241  ]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    ng 

death.  This  proved  two  thing's,  first,  that  the  Chinese  held 
the  entire  trade  of  a  nation  responsible  for  all  its  subjects 
going-  to  China,  and,  secondly,  that  the  custom  of  delivering- 
up  persons  to  the  Chinese  tribunals  in  cases  of  homicide  (a 
custom  opposed  to  that  which  was  adopted  by  the  Eng-lish) 
was  not  calculated  to  lead  to  a  satisfactory  conclusion.   .   .   . 

He  contended,  therefore,  on  the  authority  of  the  hon.  Mem- 
ber for  Portsmouth  [Sir  Georg-e  Staunton]  that  he  had 
clearly  established  the  g^rounds  upon  which,  not  this  bill,  but 
the  Act  of  1833,  to  which  the  hon.  Baronet  opposite  [Sir  J. 
Graham]  and  himself  were  joint  parties,  had  been  passed.  A 
due  reg-ard  to  British  interests  and  to  British  character  re- 
quired that  the  bill  should  pass.  If  it  was  shown  that  the 
Eng-lish  Government  had  power  to  establish  Courts  for  the 
trial  of  those  g-reater  ofTences,  and  Sir  Georgfe  Staunton  said 
it  did  not  apply  to  the  trial  of  minor  ones,  he  should  like  to 
know  upon  what  principle  that  power  was  not  to  be  applied 
to  the  smaller  offences,  which  it  was  in  fact  more  necessary  to 
control  and  prevent,  as  it  would  be  the  best  means  of  prevent- 
ing- that  insubordination  which  was  calculated  to  occasion 
these  more  g-rave  offences.  ...  Its  object  [of  the  bill]  merely 
was  to  extend  the  powers  of  the  existing-  law  to  the  trial  of 
civil  offences.^ 

The  next  speaker  was  Sir  J.  Graham  who  began  by  ad- 
mitting the  correctness  of  Lord  Palmerston's  statement  that 
he  had  taken  some  part  in  framing  the  measure  of  1833, 

but  he  found  himself  bound  to  say,  that  experience  had  con- 
vinced him,  that  the  clauses  were  unnecessary,  and  he  now- 
considered,  that  it  would  be  hig:hly  inexpedient  to  extend 
their  operation.' 

Sir  James,  however,  added  that  he  wished  the  bill  to  go 

^  For  the    full  text   of    Lord    Palmerston's   speech,   see  44   Hansard 
(1838).  745-9- 
^  Ibid.,  749-51- 


I20  THE  STATUS  OF  ALIENS  IN  CHINA  [242 

into  committee,  "  because  he  approved  highly  of  the  fifth 
clause  for  the  repeal  of  the  Tonnage  duties;  and  he  there- 
fore thought  it  highly  desirable  that  so  much  of  the  bill 
should  pass.  It  appeared  to  him,  that  consistently  with  the 
whole  course  of  British  policy,  with  international  law  and 
past  experience,  it  would  be  unadvisable  to  pass  the  re- 
mainder of  the  bill.  If  some  understanding  were  not  come 
to  on  the  point,  he  should,  in  the  event  of  a  division,  vote 
against  the  bill." 

Mr.  Warburton  expressed  his  readiness  to  support  the 
bill  for  the  repeal  of  the  tonnage  duties,  but  as  to  the  other 
clauses,  he  said,  they  should  be  deferred  until  the  House 
had  further  information  on  the  subject.^  At  this  point 
Lord  Palmerston  again  obtained  the  floor  and  stated  that 

the  right  hon.  Baronet  had  said,  "  Get  the  consent  of  the 
Chinese  Government,  and  then  come  to  Parliament."  Did  the 
rig^ht  hon.  Baronet  really  think  that  that  would  be  the  best 
course  to  adopt?  Because  when  the  Chinese  Government  was 
asked  to  consent,  they  would  naturally  inquire  what  the  regu- 
lations were  before  they  would  decide.  Now,  the  wish  of  the 
Government  was,  to  obtain  the  consent  of  the  Chinese  Gov- 
ernment to  something-  specific,  and  that  was  all  that  was 
wanted.^ 

Another  member,  Mr.  M.  C.  Lushington  urged  Lord 
Palmerston  to  accede  to  Sir  J.  Graham's  "  excellent  ad- 
vice ",  as  he  felt  convinced  that  "  it  would  be  utterly  use- 
less to  attempt  to  get  the  consent  of  the  Chinese  Govern- 
ment to  abstract  regulations."  ^  Then  Mr.  Hawes  with- 
drew his  amendment  and  the  House  w-ent  into  committee 
on  the  bill. 

But  when  clause  one  was  proposed,  Mr.  Hawes  rose 
again   to   move   its   omission,   stating   that   as    far   as   he 

1  Op.  cit.,  p.  751.  '  Ibid.  '  Ibid. 


243]   O^^^^^  ^P  EXTRATERRITORIAL  JURISDICTION    121 

knew,  no  British  merchants  had  given  their  assent  to  the 
measure,  which  was  therefore  to  be  considered  as  emanat- 
ing exclusively  from  the  Foreign  Office.  To  the  establish- 
ing of  a  court  for  trial  of  offences  by  British  subjects,  said 
Mr.  Hawes,  there  could  be  no  objection;  but  he  protested 
against  a  court's  interfering  with  an  independent  power 
like  China.^ 

The  Solicitor-General  urged  that  the  omission  of  the 
clause  would  place  the  House  in  a  novel  situation.  There 
were,  he  said,  two  thousand  of  her  Majesty's  subjects  resi- 
dent near  Canton,  and  it  was  necessary  that  there  should 
be  some  means  of  settling  the  disputes  which  might  arise. 
It  was,  according  to  him,  for  the  benefit  of  those  on  the 
spot,  that  there  should  be  some  tribunal  to  which  they  might 
resort.^ 

Finally,  Viscount  Palmerston,  stated  that  as  the  sense 
of  the  House  appeared  to  be  against  the  bill,  he  had  "  no 
objection  to  postponing  it  until  next  session."  The  bill  was 
accordingly  withdrawn.^ 

The  proceedings  on  the  bill  of  1838  have  been  described 
above  somewhat  at  length,  not  so  much  because  they  evi- 
dence the  fact  that  it  was  introduced  in  Parliament  and 
failed  of  passage,  as  because  they  elucidate  certain  prin- 
ciples which  were  claimed  to  constitute  a  valid  ground, 
not  only  for  the  bill  itself,  but  also  for  the  act  of  1833, 
which,  as  has  been  pointed  out,  was  enacted  at  the  time 
with  little  or  no  discussion  of  the  principles  underlying 
it.  In  the  debate  which  took  place  on  the  bill,  Viscount 
Palmerston,  it  is  clear,  was  at  once  its  originator  and  prac- 
tically its  sole  supporter,  and  his  speech  may  therefore  be 
regarded  as  more  important  than  the  rest,  showing  the 
reasons  he  had  in  his  mind  for  justifying  the  action  of  the 
British  Government  in  setting  up,  of  its  own  initiative  and 

'  Op.  cit.,  p.  751.  *  Ibid.  '^  Ibid. 


122  THE  STATUS  OF  ALIENS  IN  CHINA  [244 

without  previous  consent  of  the  territorial  sovereign,  an 
extraterritorial  jurisdiction  in  China.  It  is  also  clear  that 
the  arguments  which  his  lordship  advanced  in  support  of 
the  introduction  of  the  principle  of  extraterritoriality  into 
China  were  not  claimed  by  him  to  be  original,  but  that  he 
expressly  stated  his  principal  authority  to  be  Sir  George 
Staunton,  who,  as  a  matter  of  fact,  was  one  of  the  avowed 
and  most  unyielding  opponents  to  the  bill,  he  having  him- 
self formulated  and  presented  the  set  of  resolutions  which 
were  calculated  for  no  other  purpose  than  to  defeat  the 
proposed  law.  Lord  Palmerston's  arguments  as  embodied 
in  his  speech  may  be  summarized  as  follows :  ( i )  that  the 
Chinese  under  their  own  law  of  homicide  would  put  to 
death  any  person  delivered  to  them,  whether  guilty  or  inno- 
cent, thus  necessitating  the  withdrawal  of  British  subjects 
from  their  criminal  jurisdiction;  (2)  that  the  trade  of  the 
entire  nation  would  be  held  liable  for  the  acts  of  one  of  its 
individuals  or  of  its  public  ships;  (3)  that  though  their 
consent  had  not  been  obtained,  the  Chinese  would  not 
resent  the  interference  of  the  British  Government,  as  sym- 
bolized by  the  act  of  1833  and  the  proposed  measure  of 
1838,  with  their  acknowledged  rights  of  jurisdiction  but 
that  they  could  be  reconciled  to  it;  and  (4)  that  the 
Chinese  laws  were  suspended  in  the  case  of  foreigners, 
except  in  capital  offences,  so  that  the  proposed  bill  was  not 
inconsistent  with  "  the  present  practice  and  the  acknowl- 
edged principles  of  the  Chinese  people." 

The  facts  alone  that  not  a  single  voice  was  raised  in 
Parliament  approving  these  arguments  advanced  by  Vis- 
count Palmerston  in  defence  of  his  bill,  but  that  many  were 
lifted  in  refuting  them,  and  that  because  of  an  overwhelm- 
ing opposition  the  bill  itself  had  finally  to  be  withdrawn, 
seem  to  suffice  to  show  that  they  cannot  be  either  as  con- 
vincing or  as  substantial  as  they  may  appear  on  initial  in- 


245]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    123 

spection.  Still  it  may  not  be  altogether  fruitless  to  ex- 
amine one  or  two  of  them  a  little  more  closely.  The  first 
and  second  contentions,  it  will  be  recalled,  have  already 
been  discussed  and  found  to  be  invalid  or  exaggerated  in 
connection  with  the  consideration  of  the  reasons  assigned 
by  the  British  merchants  at  Canton  for  their  open  resist- 
ance to  Chinese  law  and  authority ;  save,  as  to  the  practice 
of  holding  the  entire  British  trade  responsible  for  the  acts 
of  British  public  ships,  it  may  be  observed  that  in  the 
case  of  H.  M.  S.  Topaze,  if  not  the  only  one,  certainly  the 
most  prominent  of  its  kind,  the  select  committee  was  re- 
lieved by  the  viceroy  of  all  imputations  of  responsibility 
as  soon  as  he  became  aware  that  the  Company's  agents 
really  had  no  control  over  the  officers  and  crew  of  the  vessel 
concerned  in  the  case.  With  regard  to  Lord  Palmerston's 
third  proposition,  it  was  no  more  than  an  illusory  hope 
which,  as  will  be  presently  seen,  was  bound  to  be  betrayed 
by  subsequent  facts. 

This  brings  us  to  the  fourth  and  the  most  important 
contention,  namely,  that  the  Chinese  authorities  had  volun- 
tarily suspended  Chinese  laws  in  cases  wherein  foreigners 
were  concerned,  except  in  those  of  capital  offences.  The 
statement  was  admittedly  based  on  an  observation  made 
by  Sir  George  Staunton  in  his  then  recent  book.  In  Sir 
George's  Notices  of  China,  first  published  in  London,  1822, 
the  author,  in  the  chapter  on  "  Considerations  upon  the 
China  Trade,"  after  reviewing  the  character  of  the  regula- 
tions adopted  by  the  Chinese  authorities  for  the  govern- 
ment of  foreigners  within  their  territory,  stated :  ^ 

On  the  other  hand,  and  as  some  compensation,  for  the  impo- 
sition of  such  restrictions  and  disabilities,  it  appears  that  for- 
eig:ners  have,  almost  from  the  first,  been  admitted  to  be  per- 
sonally exempt,  excepting-  only  in  cases  of  capital  offences, 
from  the  direct  operation  of  the  penal  code  of  the  Empire. 

^  On  page  131. 


124  -^^^-^  STATUS  OF  ALIENS  IN  CHINA  [246 

A  footnote  to  this  observation  reads  : 

This  exemption  is  expressly  stated  in  an  Imperial  Edict  issued 
in  1808,  on  the  occasion  of  the  trial  of  the  British  seaman, 
Edward  Sheen:  Indeed,  both  the  law,  and  the  excepted  case, 
are  very  fully  and  distinctly  laid  down  in  that  edict  as  follows: 
"  In  all  cases  of  offences  by  contrivance,  desig^n,  or  in  affrays 
happening^  between  foreigners  and  natives  whereby  such  for- 
eigners are  liable,  according  to  law,  to  suffer  death  by  being 
strangled  or  beheaded,  the  magistrate  of  the  district  shall  re- 
ceive the  proofs  and  evidence  thereof,  at  the  period  of  the 
preliminary  investigation,  and  after  having  fully  and  distinctly 
inquired  into  the  reality  of  the  circumstances,  report  the  result 
to  the  viceroy  and  sub-viceroy;  who  are  thereupon  strictly  to 
repeat  and  revise  the  investigation.  If  the  determination  of 
the  inferior  courts,  upon  the  alleged  facts,  and  upon  the  appli- 
cation of  the  laws,  is  found  to  have  been  just  and  accurate, 
the  magistrate  of  the  district  shall,  lastly,  receive  orders  to 
proceed,  in  conjunction  with  the  chief  of  the  nation,  to  take 
the  offender  to  execution,  according  to  his  sentence.  /?i  all 
other  instances,  of  offences  committed  under,  what  the  laws  de- 
clare to  be,  palliatiyig  circumstances,  and  which  are  therefore 
not  capitally  pimishable ,  the  offender  shall  be  sent  away  to  be 
Punished  by  his  coiaitrymen  in  his  07vn  country ^  ' 

In  the  absence  of  the  Chinese  text  of  the  edict,  from 
which  the  passage  was  quoted  by  Sir  George,  it  is  of  course 
impossible  to  say  whether  the  italicized  sentence  is  or  is  not 
an  accurate  translation  of  the  original :  and  left  in  the  form 
in  which  it  stands,  and  taken  alone,  it  does  seem  to  convey 
the  idea  that  the  exemption  from  the  territorial  laws  was 
accorded  foreigners  in  China  in  cases  not  involving  capital 
punishment.  But  the  edict  as  represented  by  Sir  George's 
own  translation,  which  is  appended  by  him  to  his  "  Penal 
Laws  of  China,"  ^  embodies  much  more  than  what  was 

'  The  italics  are  Sir  George's.  '  Page  523. 


247]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    125 

quoted  by  him  in  the  passage  reproduced  above,  and  some 
of  the  omitted  parts  of  the  edict,  while  they  may  not  suffice 
conclusively  to  contradict  his  inference  as  to  the  exemption 
of  foreigners  from  Chinese  laws,  appear,  nevertheless,  to 
throw  serious  doubts  on  its  finality  or  even  its  accuracy. 
Thus  immediately  preceding  his  extract  of  the  edict  there 
is  this  statement : 

The  foregoing-  having  been  the  substance  of  reporf  of  the  vice- 
roy to  His  Imperial  Majesty,  we  deliberated  thereon,  and  have 
ascertained  that,  according  to  the  preliminary  book  of  the 
penal  code,  all  persons  from  foreign  parts,  committing 
offences,  shall  undergo  trial  and  receive  sentence  according 
to  the  laws  of  the  Empire:  Moreover,  we  find  it  declared  in 
the  same  code,  that  any  person  accidentally  killing  another, 
shall  be  allowed  to  redeem  himself  from  punishment,  by  the 
payment  of  a  fine;  lastly  we  find,  that  in  the  8th  year  of  Kien- 
Lung  (1743)  it  was  ordered,  in  reply  to  the  address  of  the 
viceroy  of  Canton  then  in  office,  that  thenceforward,  in  all 
cases  of  offences  by  contrivance,  etc.  [here  follows  the  extract 
in  question.] 

And  immediately  following  it  there  is  this  paragraph  : 

The  case  of  the  Englishman,  Edward  Sheen,  opening  a 
window-shutter  in  an  upper  story,  and  the  wooden  stick  which 
supported  it,  slipping  and  falling  down  so  as  accidentally  to 
hit  Leao-a-teng,  a  native,  who  was  passing  by,  and  by  strik- 
ing him  to  occasion  his  death,  appears  to  be,  in  truth,  one  of 
those  acts,  of  the  consequences  of  which,  neither  sight,  hear- 
ing, or  reflection  could  have  given  a  previous  warning;  there 
was,  therefore,  no  pre-disposition  to  injure,  as  the  case  is  evi- 
dently agreeable  to  the  construction  stated  in  the  commentary 
upon  the  law  of  accidental  homicide.  The  said  Edward 
Sheen  ought  therefore,  conformably  to  the  provisional  sen- 
tence submitted  by  the  viceroy  to  his  Majesty,  to  be  allowed 
to  redeem  himself  from  the  punishment  of  death  by  strangula- 


126  THE  STATUS  OF  ALIENS  IN  CHINA  [248 

tion  Cto  which  he  would  otherwise  have  been  liable,  by  the 
law  against  homicide  by  blows),  by  the  payment  of  a  fine  of 
12  leang  4  feu  and  2  lee  to  the  relations  of  the  deceased,  to 
defray  the  expenses  of  burial:  and  then  be  dismissed  to  be 
g^overned  in  an  orderly  manner  in  his  own  country. 

From  the  first  of  these  two  passages  it  clearly  appears 
that  the  amenability  of  foreigners  to  the  territorial  laws, 
whatever  offence  they  might  commit,  was  expressly  con- 
firmed. The  second  contains  a  judgment  of  sentence  ob- 
viously intended  to  be  in  strict  conformity  with  the  three 
applicable  rules  of  law  stated  in  the  preceding  paragraph : 
the  very  fact  of  judging  and  sentencing  Edw^ard  Sheen,  a 
foreigner,  at  all,  conforms  to  the  first  rule  of  the  amenabil- 
ity of  aliens  in  China  to  Chinese  law^s ;  the  sentence  to  pay 
a  fine  in  lieu  of  punishment  is  in  accordance  with  the 
second  rule  of  law  as  to  accidental  homicide;  and  what 
about  the  third  rule  contained  in  the  italicized  sentence? 
Instead  of  abstaining  from  exercising  jurisdiction  over 
the  offender  and  sending  him  aw-ay  "  to  be  punished  by 
his  countrymen  in  his  own  country,"  as  should  have  been 
done,  if  Sir  George's  interpretation  of  the  rule  had  been 
correct.  Sheen's  offence  clearly  being  one  "  committed  un- 
der, \vhat  the  laws  declare  to  be,  palliating  circumstances," 
and  which  was  "  therefore  not  capitally  punishable,"  the 
edict,  after  sentencing  him  to  pay  a  prescribed  fine,  con- 
tinued with  this  clause :  "  and  then  be  dismissed  to  be  gov- 
erned in  an  orderly  manner  in  his  own  country."  The 
significance  of  the  clause  seems  to  be  that,  as  applied  by  the 
supreme  criminal  court  at  Peking,  the  rule  embodied  in 
the  italicized  sentence  in  question  did  not,  as  was  con- 
tended by  Sir  George,  confer  upon  foreign  defendants  in 
cases  of  offences  not  capitally  punishable  the  privilege  of 
exemption  from  the  territorial  laws,  but  that  it  had  a  quite 
contrary   purpose  and   effect.      To   the   ordinary  penalties 


249]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    127 

prescribed  by  the  law  for  such  minor  offences,  the  rule 
added  that  of  expulsion  from  the  country,  where  the  of- 
fender was  a  foreigner — a  provision  not  at  all  unusual  in 
countries  of  the  west.  And  this  view  of  the  purport  of  the 
rule  appears  also  to  be  in  harmony  with  the  other  pro- 
vision in  the  edict  of  1743,  in  which  it  originated,  which 
was  to  the  effect  of  depriving  foreign  offenders,  capitally 
punishable  by  law  and  already  provisionally  sentenced  to 
death  by  the  Provincial  authorities,  of  the  benefit  of  a 
period  of  confinement,  which  the  law  had  theretofore  re- 
quired to  lapse  in  all  cases  between  sentence  and  execution, 
in  order  to  give  the  supreme  tribunal  in  Peking  time  for 
revising  the  sentence  in  favor  of  the  prisoner,  if  it  saw  fit. 
Nor,  again,  is  the  distinction  maintained  by  the  edict  of 
1743  between  offences  capitally  punishable  and  those  which 
were  not,  in  enforcing  the  added  penalty  of  expulsion, — 
altogether  unintelligible,  since  in  the  former  case  it  would 
have  been  unnecessary  as  well  as  incapable  of  execution. 

Moreover,  the  probable  circumstance  that  the  Chinese 
authorities  had  not  taken  cognizance  of  every  case  of  minor 
offence  committed  by  foreigners  no  more  proves  willing- 
ness or  readiness  on  their  part  to  exempt  the  alien  of- 
fenders from  the  territorial  laws  than  similar  omissions  in 
cases  involving  Chinese  subjects  alone  can  be  taken  as  evi- 
dence of  their  intention  to  accord  immunity  to  their  own 
subjects  from  the  operation  of  the  laws.  If  true,  the  cir- 
cumstance was  but  an  incident  of  the  principle  which  the 
Chinese  conceived  to  underlie  all  human  laws,  namely,  the 
preservation  of  the  public  tranquillity,  and  of  the  conse- 
quent policy  on  the  part  of  the  officials  not  to  intervene  in 
any  case  of  offence  except  where  such  tranquillity  was 
disturbed.  Besides,  it  is  a  fact  that  the  Chinese  authorities 
did  exercise  jurisdiction  over  foreigners  in  cases  of  even 
such  offences  as  were  obviously  not  punishable  by  death 


128  THE  STATUS  OF  ALIENS  IN  CHINA  [250 

according  to  Chinese  law,  assaults  on  Englishmen  in  Macao, 
for  instance,  being  dealt  with  by  the  Chinese  authorities  as 
late  even  as  1826.^ 

It  is  clear,  then,  that  what  Sir  George  Staunton  stated  as 
to  the  voluntary  suspension  by  the  Chinese  authorities  of 
the  territorial  laws  in  favor  of  foreigners  committing  minor 
offences  in  China  was  based,  to  say  the  least,  on  question- 
able grounds ;  that  Viscount  Palmerston's  repetition  of  it 
in  the  House  of  Commons  on  July  28,  1838,  had  no  more 
sanction  of  accuracy  than  the  original  statement  itself ; 
and  that  as  it  was,  the  contention  can  hardly  be  accepted 
as  a  sound  and  valid  argument  for  the  introduction  into 
China  of  the  principle  of  extraterritoriality,  which  underlay 
the  bill  of  1838  as  well  as  the  act  of  1833. 

The  attitude  of  the  Chinese  rulers  toward  the  assumption 
by  Great  Britain  of  jurisdiction  over  the  British  subjects 
in  China,  as  represented  by  the  criminal  court  set  up  in 
pursuance  of  the  act  of  1833,  now  remains  to  be  consid- 
ered. If  it  had  been  expected,  as  it  appears  to  have  been  by 
Viscount  Palmerston  in  1838,  that  the  authorities  of  the 
Celestial  Kingdom  would  not  resent  such  interference  with 
their  rightful  jurisdiction  but  would  soon  reconcile  them- 
selves to  an  accomplished  fact,  the  expectation  could  not 
have  been  based  on  a  correct  reading  of  the  signs  of  the 
time.  The  mere  fact  that  they  refused  from  the  very  out- 
set to  recognize  and  receive  on  a  footing  of  equality  the 
successive  superintendents  sent  to  China  by  the  British 
Government,  should  have,  it  seems,  sufficed  to  forewarn 
one  of  entertaining  such  a  self-complacent  view.  On  the 
part  of  the  mandarins  there  was  a  sustained  adherence  to 
the  principle  of  territorial  sovereignty  and  jurisdiction. 
As  late  as  January  2.   1839.  Captain  Elliot,  the  chief  su- 

'  Morse,  Intern.  Rel.,  p.  loi. 


251]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    129 

perintendent,  could  see  no  prospect  of  having  his  anxiety 
relieved  by  a  change  of  attitude  on  the  part  of  the  local 
governn;ient  on  the  question  of  jurisdiction  over  the  British 
merchai^ts  in  China,  for  on  that  day  he  wrote  to  Viscount 
Palmerston : 

My  own  anxiety  on  this  subject  will  be  more  explicable,  when 
I  inform  your  Lordship,  that  till  1  am  differently  instructed,  I 
should  hold  it  to  be  my  duty  to  resist  to  the  last,  the  seizure 
and  punishment  of  a  British  subject  by  the  Chinese  law,  be 
his  crime  what  it  might ;  and  crimes  of  the  g-ravest  character 
have  lately  been  of  every  day  probability.' 

And  Captain  Elliot  had  just  cause  to  feel  perturbed.  For 
hardly  had  his  dispatch  reached  England  when  Commis- 
sioner Lin  in  March,  1839,  ordered  away  the  Chinese  ser- 
vants from  the  British  factory,  cut  off  their  supplies,  and 
placed  them  in  a  state  of  siege,  for  the  sole  purpose  of 
enforcing  obedience  to  the  Chinese  law  against  the  opium 
traffic.^  Again,  half  a  year  later,  on  July  7,  when  Lin 
"VVei-hi,  a  Chinese,  was  killed  by  English  sailors  in  a  riot 
on  the  Kowloon  side  of  the  Hongkong  anchorage,  "  oc- 
casioned by  their  attempt  to  obtain  spirits  to  drink,"  the 
commissioner  lost  no  time  in  demanding  the  unconditional 
delivery  of  the  English  offenders  for  trial.  He  declined 
even  to  consider  the  proposal  of  the  British  superintendent 
to  hold  a  joint  investigation  "  congenial  to  the  customs 
of  both  nations  "  and  place  the  murderer,  when  found, 
"  on  his  trial  according  to  the  laws  of  his  own  country, 
before  the  Honorable  [Chinese]  officers;"  ^  and  he  refused 
to  accept  the  superintendent's  subsequent  invitation  to  send 

'29  Br.  and  For.  State  Papers  (1840-1841),  920. 

*  Davis,  China  and  the  Chinese,  p.  134. 

'30  Br.  and  For.  Slate  Papers  (1841-1842),   12. 


130  THE  STATUS  OF  ALIENS  IN  CHINA  [252 

deputies  to  attend  a  trial  on  board  a  British  ship  scheduled 
to  take  place  on  August  12,  Captain  Elliot  proceeded  with 
his  trial  without  any  Chinese  representative  and  sitting  as 
judge,  he  undertook,  after  much  hesitation,  to  convict  five 
sailors  of  riot  and  assault,  and  sentenced  them  to  pay  a  fine 
and  undergo  a  period  of  imprisonment  in  some  prison  in  the 
United  Kingdom.^  But  these  proceedings  only  further 
strengthened  the  determination  of  the  commissioner,  who, 
seeing  that  mere  verbal  demand  would  not  produce  the  de- 
sired surrender  of  the  British  culprits,  went  so  far  to  en- 
force the  territorial  jurisdiction  as  to  move  down  to  Heung- 
shan,  midway  between  Canton  and  Macao,  with  2000  troops 
to  compel  delivery.  It  is,  of  course,  true  that  the  British 
superintendent  and  the  British  merchants,  in  the  face  of  an 
imminent  attack  by  the  commissioner,  and  the  food  sup- 
plies to  Macao  having  been  cut  off,  simply  left  China  by 
embarking  on  board  the  ships  on  August  26,"  and  retained 
to  the  last  the  offenders  whose  surrender  was  demanded  of 
them ;  but  at  the  same  time,  so  far  as  the  question  of  prin- 
ciple is  concerned,  there  is  no  room  for  doubt  that  the 
Chinese  authorities  uncompromisingly  upheld  their  own 
sovereign  jurisdiction,  not  only  refusing  to  recognize,  but 
persistently  and,  as  in  this  case,  forcibly  resisting,  any  in- 
fringement of  it  by  the  British. 

This  was  the  last  case  of   homicide   involving  British 

'111  holding  this  "court  of  justice"  and  sentencing  his  offending 
countrymen,  Captain  Elliott  was  not  at  all  sure  if  he  did  not  thereby 
exceed  his  authority,  and  he  subsequently  considered  it  necessary  to 
plead  his  conscience  in  justification  of  his  proceedings. — 30  Br.  and  For. 
State  Papers,  25.  In  fact,  it  appears  that  "  the  sentence  of  imprison- 
ment was  never  carried  into  effect,  the  government  deciding  that  the 
authority  vested  in  the  superintendent  did  not  give  him  jurisdiction 
over  the  person  and  liberty  of  the  subject." — Morse,  Intern.  Rel.,  p.  238. 

*  Capt.  Elliot  to  Vt.  Palmerston,  Aug.  27,  1839;  29  Dr.  and  For.  State 
Papers   (1840-1841),  1038. 


253]  ^^^^^^  OF  EXTRATERRITORIAL  JURISDICTION    131 

subjects,  which  occurred  before  the  outbreak  of  hostilities 
between  China  and  Great  Britain  in  the  autumn  of  1839, 
and  the  controversy  which  arose  out  of  it  was  not  different 
from  that  which  had  attended  previous  cases  of  a  similar 
character.  The  situation  on  the  question  of  jurisdiction 
over  British  subjects  in  China,  more  particularly  during 
the  half  a  century  down  to  the  eve  of  the  opium  war,  may 
therefore  be  summarized  as  follows:  On  one  hand  the 
British  merchants,  with  the  aid  of  the  East  India  Company 
prior  to  1834,  and  with  the  official  countenance  and  sup- 
port of  their  Government  after  that  year,  openly,  violently 
and  stubbornly  refused  to  submit  themselves  to  the  Chinese 
jurisdiction,  especially  in  cases  of  grave  crimes  committed 
by  any  one  of  them;  and  on  the  other,  the  Chinese  rulers 
manifested  an  equally  strong  determination  and  a  like 
readiness  to  resort  to  all  means  in  their  efforts  to  overcome 
the  contumacy  of  the  British  and  to  subject  them  to  the 
control  of  Chinese  law  and  authority.  Between  these  two 
views  and  policies,  there  was  obviously  a  broad  gulf  of  dif- 
ference— too  broad  to  be  bridged  by  peaceful  compromise; 
and  controversy  and  clash  were  naturally  rife.  As  in  the 
case  of  the  other  vexatious  questions  between  the  two  coun- 
tries, right  having  failed  to  prevail,  the  question  of  juris- 
diction over  British  subjects  in  China  was  to  be  settled 
only  by  the  arbitrament  of  might. 

When  the  two  countries  were  engaged  in  bello  flagrante 
there  was  of  course  no  opportunity  for  re-considering  the 
question  of  extraterritoriality;  but  when  the  vanquished 
sued  for  peace,  the  victor  did  not  fail  to  avail  herself  of 
the  occasion  to  extract  as  many  concessions  of  rights  and 
privileges  as  she  desired.  In  his  instructions  ^  of  February 
20.  1840,  to  Admiral  G.  Elliot  and  Captain  C.  Elliot,  pleni- 

^  Morse,  Intern.  Rel.,  p.  628,  appendix  B. 


132  THE  STATUS  OF  ALIENS  IN  CHINA  [054 

potentiaries  appointed  to  treat  with  the  Chinese  Gover'n- 
ment.  Lord  Pahnerston  stated  that  the  British  Government 
was  willing  to  accept,  "  as  full  reparation  for  the  affront 
offered  to  the  British  Crown  by  the  indignities  put  upon 
Her  Majesty's  Superintendent,  and  by  the  outrageous  pro- 
ceedings adopted  towards  Her  Majesty's  other  subjects  in 
China,"  and  "  as  security  against  their  occurrence,  the 
cession  of  one  or  more  Islands  on  the  Coast,  to  be  fixed 
upon  by  the  Naval  Commander  and  the  Superintendent,  as 
eligible  to  be  occupied  as  stations  at  which  Her  Majesty's 
subjects  trading  to  China  might  reside  in  safety,  under  the 
protection  of  British  authority ;  and  from  whence  they 
might  securely  carry  on  their  commercial  intercourse  with 
the  principal  Ports  of  the  Coast  of  China;"  but  that  the 
British  Government  would  forego  the  permanent  posses- 
sion of  any  island  on  the  Chinese  coast,  if  the  Chinese 
Government  consented,  in  lieu  of  any  cession  of  territory, 
to  give  by  treaty  security  and  freedom  of  commerce  to 
British  resident  in  China.  His  lordship  then  stated  what 
the  "  principal  stipulations  of  such  a  Treaty  ought  to  be," 
one  of  which  was  to  the  effect  that  commodities  introduced 
into  China  by  British  subjects  against  the  prohibition  of 
Chinese  laws  and  lawful  goods  smuggled  into  China  by 
them  without  any  duty  being  paid  upon  them  might  be 
seized  and  confiscated,  "  but  that  in  no  case  shall  the  Per- 
sons of  British  Subjects  be  molested  on  account  of  the  im- 
portation or  the  exportation  of  Goods."  Another  prin- 
cipal stipulation  was  thus  stated  : 

That  the  British  Superintendent  of  Trade,  or  Consul-General, 
shall,  if  ordered  to  do  so  by  his  own  Government,  be  at  liberty 
to  make  Rules  and  Regulations,  and  to  establish  Courts  of 
Justice,  for  the  gfovernment  of  British  Subjects  in  China  ;  and 
that  if  any  British  Subject  shall  be  accused  of  any  offence  or 
crime,  he  shall  be  tried  by  the  Tribunal  which  may  be  estab- 


255]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    133 

lished  by  the  Superintendent  or  Consul-General  for  such  a 
purpose;  and  that  his  punishment,  if  he  be  found  guilty,  shall 
be  left  to  the  British  Government  or  its  authorities.^ 

In  the  draft  treaty  accompanying  these  instructions,  an 
article  providing  for  the  establishment  of  British  courts 
in  China  and  for  the  trial  and  punishment  of  British  of- 
fenders by  such  courts,  concluded  with  this  clause:  "And, 
in  general,  all  causes  and  suits  in  which  British  subjects  in 
China  shall  be  defendants,  shall  be  tried  by  the  above- 
named  tribunals."  ^ 

§  7.   Concession  of  Extraterritorial  Rights  to  British 
Subjects  at  Nanking,  1842 

Although  it  is  thus  seen  that  the  cession  of  an  island  and 
the  conclusion  of  a  commercial  treaty  were  intended  to  be 
alternatives,  yet  in  the  peace  negotiations  which  took  place 
at  Nanking,  Sir  Henry  Pottinger,  who  had  superseded  the 
earlier  plenipotentiaries  for  Great  Britain,  obtained  both  of 
them.  In  addition  to  the  cession  of  Hongkong,  it  appears 
that  Sir  Henry  also  secured  the  freedom  of  commercial 
intercourse,  including  the  privilege  of  extraterritoriality 
for  British  subjects  within  the  dominions  of  China.  It  is 
true  that  the  treaty  of  peace  signed  on  H.  M.  S.  Cornwallis 
at  Nanking,  August  29,  1842,  did  not  expressly  provide 
for  the  enjoyment  of  such  a  privilege  by  British  subjects; 
but  at  the  same  time  there  are  substantial  grounds  for  be- 
lieving that  the  concession  was  granted  by  the  Chinese 
peace  commissioners  at  Nanking  as  part  of  the  price  paid 
for  the  restoration  of  peace  and  friendship. 

In  the  first  place,  article  XIII  of  the  General  Regula- 
tions, conceding  the  principle  of  extraterritoriality  to  Great 
Britain,    expressly    refers    to    certain    correspondence    ex- 

1  Morse,  Intern.  Rei,  p.  629.  '^  Ibid.,  p.  300. 


134  THE  STATUS  OF  ALIENS  IN  CHINA  [256 

changed  at  Nanking.     The  language  of  the  article  in  part 
reads : 

Regarding  the  punishment  of  English  criminals,  the  English 
Government  will  enact  the  laws  necessary  to  attain  that  end, 
and  the  Consul  will  be  empowered  to  put  them  into  force  ; 
and  regarding  the  punishment  of  Chinese  criminals,  these  will 
be  tried  and  punished  by  their  own  laws,  in  the  way  provided 
for  by  the  correspondence  which  took  place  at  Nanking  after 
the  concluding  of  the  peace.' 

Secondly,  long  before  the  general  regulations  were  signed 
or  published  by  the  plenipotentiaries  of  the  two  nations,  it 
appears  to  have  been  understood  in  England  that  the  con- 
cession of  extraterritoriality  in  favor  of  British  subjects 
in  China  had  been  granted  by  the  Chinese  Government 
at  the  end  of  the  war.  On  March  17,  1843,  ^  little  over 
three  months  after  the  treaty  of  Nanking  with  its  accom- 
panying dispatches  from  Sir  Henry  had  arrived  in  London 
(December  10,  1842),  the  Marquis  of  Lansdowne  stated 
in  the  House  of  Lords 

that  he  wished  to  impress  upon  Her  Majesty's  Government 
the  necessity  of  legislating  even  during  the  Session,  for  the 
purpose  of  creating  such  an  authority  in  that  countrj'^  as  was 
absolutely  necessary  ;  in  his  opinion  even  an  imperfect  act 
would  be  better  than  none  at  all.  In  1838  the  then  Govern- 
ment proposed  a  bill  for  the  purpose  of  establishing  a  Court 
at  Canton  but  it  was  strenuously  opposed  by  a  right  hon. 
Baronet  now  high  in  Her  Majesty's  Council,  upon  the  ground 
that  the  Chinese  government  had  given  no  authority  for  it, 
and  would  not  recognize  it.  That  ground  was  now  removed, 
for  the  expediency  of  such  a  tribunal  had  been  recognized  by 
the  Chinese  authorities.^ 

'  Treaties  between  China  and  Foreign  Slates,  i,  p.  196. 
'67  Hansard  (1843),  1077. 


257]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    135 

And  it  appears  further  that  the  advice  of  the  Marquis  of 
Lansdowne  was  not  unheeded.  On  August  3,  1843,  when 
the  general  regulations  could  not  have  as  yet  reached  Eng- 
land with  the  means  of  communication  in  vogue  at  the  time. 
Viscount  Gordon  introduced  in  the  House  of  Lords  a  bill 
entitled  "  An  Act  for  the  better  Government  of  Her  Maj- 
esty's Subjects  resorting  to  China,"  which  became  an  act 
of  Parliament  on  August  22,  1843/  authorizing  the  Su- 
perintendent of  British  Trade  in  China  to  make  and  en- 
force laws  for  the  control  of  British  subjects  in  the  domin- 
ions of  the  Emperor  of  China.  Indeed  within  four  weeks 
after  the  treaty  of  Nanking  and  the  accompanying  corres- 
pondence arrived  in  London,  new  Orders  in  Council  began 
to  be  issued  putting  into  full  operation  the  court  of  justice 
created  under  the  act  of  1833. 

The  third  ground  for  believing  that  the  concession  of  ex- 
traterritoriality was  obtained  by  Great  Britain  at  Nanking 
at  the  end  of  the  war,  is  that  the  general  regulations  em- 
bodying the  extraterritorial  provision  were  not  only  in 
substance  a  mere  confirmation  and  amplification  of  certain 
principles  of  commercial  intercourse  already  agreed  upon 
between  the  plenipotentiaries  of  the  two  countries  at  the 
scene  of  the  peace  negotiations,  but  also  were  considered 
and  understood  at  the  time  as  forming  a  part  of  the  treaty 
of  peace.  They  were  signed  by  Sir  Henry  Pottinger  and 
Commissioner  Kiying,  probably  on  June  26,  1843,  the  day 
on  which  they  met  and  exchanged  the  ratifications  of  the 
treaty  of  Nanking,  but  certainly  on  or  before  July  22,  in 
the  same  year,  when  they  were  published  by  the  two  pleni- 
potentiaries simultaneously  in  separate  proclamations." 
These  regulations  were  put  into  effect  at  Canton  imme- 

^6  ky  Vict.,  c.  80. 

'  For  the  text  of  the  proclamations,  see  31  Br.  and  For.  State  Papers 
(1842-3),  138;  Pari  Papers.  1844,  vol.  51,  p.  348. 


136  'i^HE  STATUS  OF  ALIENS  IN  CHINA  [258 

diately  after  their  publication,  and  at  the  other  four  ports 
a  little  later.  In  the  British  document,  together  with  the 
import  and  export  tariffs,  which  "have  been,  after  the  most 
searching  scrutiny  and  examination,  fixed  and  finally  agreed 
upon,"  they  were  designated  as  "a  Commercial  Treaty,  stip- 
ulated for  in  the  Definitive  Treaty  of  Peace  signed  at  Nan- 
king on  the  29th  of  August,  1842."  ^  Again,  the  fact  that 
these  regulations  were  first  officially  printed  intact  with  the 
treaty  of  peace,  although  they  were  subsequently  also  ap- 
pended to  the  supplementary  treaty  of  October  8,  1843, 
after  being  incorporated  into  its  second  article  to  avoid 
any  possible  misunderstanding,  seems  likewise  to  show  that 
they  were  considered  at  least  by  the  British  to  be  a  part 
thereof.^ 

Moreover,  certain  questions  put  by  the  Earl  of  Clarendon 
to  the  Earl  of  Aberdeen,  Secretary  for  Eoreign  Affairs,  as 
to  the  character  of  the  regulations,  in  the  House  of  Lords, 
on  February  6,  1844, — when  the  text  of  the  supplementary 
treaty  was  yet  on  its  way  to  England — seem  directly  to 
bear  out  the  point  which  is  under  consideration.  After 
expostulating  on  the  importance  of  the  treaty  of  peace  and 
the  necessity  of  having  it  perfectly  understood,  the  Earl 
of  Clarendon  said,  with  reference  to  the  regulations,  that 
they  appeared  to  him 

'  Sir  Henry  Pottinger,  in  his  proclamation  of  July  22,  1843,  declared 
that  "  at  the  same  time  it  is  his  duty  ...  to  distinctly  intimate,  that  he 
is  determined,  by  every  means  at  his  disposal,  to  see  the  provisions  of 
the  Commercial  Treaty  fulfilled  by  all  who  choose  to  engage  in  com- 
merce with  China;  and  that  in  any  case  when  he  may  receive  well- 
grounded  representations  from  Her  Majesty's  Consuls,  or  from  the 
Chinese  Authorities,  that  such  provisions  of  the  Commercial  Treaty 
have  been  evaded  (or  have  been  attempted  to  be  so),  he  will  adopt  the 
most  stringent  and  decided  measures  against  the  offending  parties." — 
31  Br.  and  For.  State  Papers  (1841-1842),  138;  Pari.  Papers,  1844,  vol. 
51,  p.  348. 

*  See  Pari.  Papers,  1844,  vol.  151,  pp.  329-338. 


259]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    137 

to  be  formed  most  carefully  with  a  due  regfard  to  the  customs 
of  the  Chinese,  and  with  a  view  to  prevent  those  insults  and 
frauds  on  their  side,  and  the  quarrels  and  disorders  on  ours, 
by  which  the  intercourse  between  the  two  nations  had  been  so 
frequently  interrupted.  These  regulations,  he  apprehended, 
must  be  considered  as  part  of  the  Treaty  ;  because  in  the 
second  article  of  the  Treaty  they  were  referred  to,  and  thus 
formed  an  integral  part  of  it.  But  as  this  was  nowhere  posi- 
tively affirmed,  it  w^as  desirable  to  know  what  was  understood 
and  intended  by  Her  Majesty's  Government,  whether  British 
subjects  were  bound  to  obey  those  regulations,  and  whether 
Her  Majesty's  representatives  in  China  had  authority  to  en- 
force those  regulations,  as  a  portion  of  the  Treaty  engage- 
ments between  the  two  countries  ?  ^ 

To  this  interpellation  the  Earl  of  Aberdeen  said  that 

the  regulations  to  which  his  noble  Friend  referred  had  been 
drawn  up  jointly  by  Sir  H.  Pottinger  and  the  Chinese  com- 
missioners, and  therefore  certainly  might  be  taken  as  a  part 
of  the  Treaty.^ 

In  view  of  these  grounds  it  may  be  safely  said  that  the 
principle  of  extraterritoriality  was  formally  conceded  by 
China  to  Great  Britain,  for  the  first  time,  not  in  the  general 
regulations  of  July  22,  1843,  still  less  in  the  supplementary 
treaty  of  October  8,  1843,  but  in  1842  at  Nanking  at  the 
close  of  the  opium  war;  although  prior  to  that  time,  as  has 
been  shown,  the  British  merchants  had  from  the  outset 
claimed  and  assumed  the  privilege,  and  although  later  the 
British  Government  had  set  up  in  China  a  system  based  upon 
the  principle,  in  both  cases  in  spite  of  the  discountenance 
and  opposition  of  the  Chinese  authorities.  And  the  con- 
cession of  extraterritoriality  was,  to  use  the  language  of 
the  Earl  of  Clarendon,  "  one  of  the  most  important  of  the 
whole  Treaty  [of  Peace]."  ^ 

^72  Hansard  (1844),  263.  "^  Ibid.,  266.  ^  Ibid.,  263. 


138  THE  STATUS  OF  ALIENS  IN  CHINA  [260 

§  8.  British  Legislation  and  Orders  in  Council  of  184^  on 
Extraterritorial  Jurisdiction  in  China 

It  now  remains  to  review  briefly  the  extraterritorial 
legislation  adopted  by  Parliament  for  application  in  China 
and  the  executive  measures  taken  by  the  Crown  in  pursu- 
ance thereof,  during  the  period  between  the  conclusion  of 
the  treaty  of  Nanking,  August  29,  1842,  and  for  con- 
venience' sake,  the  signing  of  the  treaty  of  Wanghia  be- 
tween China  and  the  L'nited  States,  July  3,  1844,  in  order 
to  see  to  what  extent  the  extraterritorial  system  which 
Great  Britain  had  originally  erected  in  China  without  sanc- 
tion of  the  law  of  nations  and  in  defiance  of  the  Chinese 
Government,  and  the  recognition  of  the  principle  of  which. 
had  ultimately  been  wrung  out  from  the  Chinese  Emperor 
only  by  force  of  arms,  was  reorganized  and  set  into  re- 
newed operation.  In  carrying  out  this  proposed  survey  it 
is  desirable  to  follow  as  closely  as  possible  the  chronological 
order,  as  it  is  only  thus  that  the  process  of  perfecting  the 
machinery  of  British  extraterritorial  jurisdiction  in  China 
may  be  clearly  understood. 

By  an  Order  in  Council  of  January  4,  1843,^  i^  "^as  or- 
dered that  the  court  of  justice  with  criminal  and  admiralty 
jurisdiction,  as  appointed  by  the  act  of  1833  ^"^i  estab- 
lished by  an  Order  in  Council  of  December  9,  1833,  "  ^^'^^Vi 
henceforth  be  holden  in  the  island  of  Hongkong;  and  that 
the  same  shall  have  and  exercise  jurisdiction  for  the  trial 
of  offences  committed  by  Her  Majesty's  subjects  within 
the  said  island  and  within  the  dominions  of  the  Emperor 
of  China,  and  the  ports  and  havens  thereof,  and  on  the 
high  seas  within  100  miles  of  the  coast  of  China."  The 
chief  superintendent  appointed  in  pursuance  of  the  act  of 
1833  was  required  to  hold  the  court.     By  the  same  Order 

'31  Br.  and  For.  State  Papers  (1842-1843),  1373- 


26l]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    130 

all  other  provisions  of  the  Order  in  Council  of  December 
9,  1833,  were  confirmed. 

Another  Order  in  Council  of  February  24,  1843/  Pro- 
hibited British  subjects  from  resorting  for  commercial  pur- 
poses to  any  other  ports  in  China  than  the  five  opened  by 
the  treaty  of  Nanking,  "  or  than  may  be  in  the  occupation 
of  Her  Majesty's  forces."  Any  British  subject,  upon  con- 
viction of  a  breach  of  this  direction  in  any  British  court 
of  record  or  vice-admiralty,  was  made  liable  to  a  penalty, 
not  exceeding  £100,  or  to  imprisonment,  for  a  term  not  ex- 
ceeding three  months;  and  all  proceedings  held  under  this 
Order,  "shall  be,  as  far  as  circumstances  will  pemiit,  in  con- 
formity with  the  law  of  England." 

On  August  3,  1843,  ^s  will  be  recalled,  a  bill  was  intro- 
duced in  the  House  of  Lords  for  the  purpose  of  improv- 
ing the  machinery  for  the  government  of  British  subjects 
in  China.  It  was  passed  by  the  Lords  on  August  1 1  and 
by  the  Commons  on  August  17,  without  debate  in  either 
place ;  -  and  it  became  an  act  of  Parliament  on  August  22.^ 
The  preamble  of  the  act  made  no  reference  to  the  treaty 
of  Nanking's  including  the  general  regulations,  but  recited 
the  act  of  1833,  and  then  continued: 

Whereas,  for  g:iving-  full  effect  to  the  Purposes  of  the  said 
Act,  it  is  necessary  that  Provision  be  made  for  the  Establish- 
ment from  Time  to  Time  of  Regulations  for  the  Government 
of  Her  Majesty's  Subjects  resorting  to  China,  and  it  is  ex- 
pedient that  such  Regulations  should  originate  with  some 
local  Authority  cognizant  of  the  actual  Circumstances  and 
Exigencies  of  such  Her  Majesty's  Subjects,  and  of  the  Trade 
carried  on  by  them  in  China,  etc. 

1  Op.  cit.,  1374. 

'75  Journal  of  H.  Lords,  570  et  seq.\  71  Hansard  (1843),  536,  908, 
986. 

»6  &  7  Vict.,  c.  80. 


I40  T^i^E  STATUS  OF  ALIENS  IN  CHINA  [262 

It  then  enacted  in  the  first  section  : 

That  it  shall  be  lawful  for  Her  Majesty  ...  to  authorize  the 
Superintendent  of  the  Trade  of  Her  Majesty's  Subjects  in 
China  (so  long-  as  such  Superintendent  shall  be  also  the  Gov- 
ernor of  the  Island  of  Hong-Kong;)  to  enact,  with  the  Advice 
of  the  Legislative  Council  of  the  said  Island  of  Hong-Kong, 
all  such  Laws  and  O  rdinances  as  may  from  Time  to  Time  be 
required  for  the  Peace,  Order,  and  Good  Government  of  Her 
Majesty's  Subjects  being  within  the  Dominions  of  the  Em- 
peror of  China,  or  being  within  any  Ship  or  Vessel  at  a  Dis- 
tance of  not  more  than  One  Hundred  Miles  from  the  Coast  of 
China,  and  to  enforce  the  Execution  of  such  Laws  and  Or- 
dinances by  such  Penalties  and  Forfeitures  as  to  him.  by  the 
Advice  aforesaid,  shall  seem  lit. 

Section  3  provided  : 

That  it  shall  also  be  lawful  for  Her  Majesty  .  .  .  to  ordain, 
for  the  Government  of  Her  Majesty's  Subjects  .  .  .  [within 
the  aforesaid  jurisdiction]  .  .  .  any  Law  or  Ordinance  which 
to  Her  Majesty  may  seem  meet,  as  fully  and  effectually  as 
an)'  such  Law  or  Ordinance  could  be  made  by  Her  Majesty 
in  Council  for  the  Government  of  Her  Majesty's  Subjects  be- 
ing within  the  said  Island  of  Hong-Kong. 

In  pursuance  of  this  new  act.  Sir  Henry  Pottinger,  who 
had  been  appointed  Governor  of  Hongkong  on  April  6, 
preceding,  Avas  confirmed  by  a  commission  of  August  26, 
1843,^  ii^  ^"lis  previous  appointment  to  the  office  of  chief 
superintendent  of  British  trade,  and  was  empow-ered  by 
another  commission  "  bearing  the  same  date  to  exercise  the 
powers  and  authorities  vested  in  his  office  by  the  first 
section  of  the  act  of  1843. 

1  Pari.  Papers,    1844,   vol.   51    [556]  ;   31    Br.   and  For.   State  Papers 
(1842-1843),  1233. 
» Ibid. 


263]  ORIGIN  OF  EXTRATERRirOIUAL  JURISDICTION    141 

By  an  Order  in  Council  of  October  2,  1843/  it  was  di- 
rected that  if  any  law  or  ordinance  made  in  pursuance  of 
the  act  of  August  22,  1843,  "  shall  be  in  any  wise  re- 
pugnant to,  or  at  variance  with  "  the  Orders  in  Council 
of  December,    1833.  January  4,    1843,  ^"^  February  24, 

1843,  "  then  such  law  or  ordinance,  so  long  as  the  same 
shall  be  in  force,  shall  be  obeyed  and  observed,  anything 
in  the  said  recited  Orders  in  Council  contained  to  the 
contrary  in  anywise  notwithstanding." 

An  ordinance  made  by  the  Governor  of  Hongkong  on 
January  24,  1844,-  provided,  in  the  first  article,  that  "  the 
law  of  England  shall  have  the  same  force,  virtue,  power 
and  effect  over  Her  Majesty's  subjects  within  the  domin- 
ions of  the  Emperor  of  China,  or  within  any  ship  or  vessel 
at  a  distance  of  not  more  than  one  hundred  miles  from  the 
coast  of  China,  in  all  matters  whatsoever,  whether  civil 
or  criminal,  that  it  has  over  Her  Majesty's  said  subjects 
within  Her  Majesty's  Colony  of  Hong-Kong."  Article  2 
authorized  the  courts  in  Hongkong  to  exercise  over  British 
subjects  in  China  or  within  100  miles  from  her  coast  the 
same  power,  jurisdiction  and  authority  in  criminal  and 
civil  matters,  that  they  had  or  should  have  in  Hongkong. 
By  Article  3  British  subjects  brought  before  the  courts 
of  Hongkong  for  having  committed  crimes  in  China  or  in 
her  stated  neighborhood  were  precluded  from  objecting 
to  the  jurisdiction  of  such  courts ;  and  by  article  4  Macao 
vvas  to  be  considered  as  within  the  dominions  of  the 
Chinese  Emperor  for  the  purposes  of  the  ordinance. 

In  order  to  carry  into  effect  the  ordinance  of  January  24, 

1844,  Sir  Henry  Pottinger  enacted  another  of  February 

^  31  Br.  and  For.  State  Papers,  1237. 

'  Pari.   Papers,    1844,   vol.   51    [556]  ;    32   Br.   and  For.   State  Papers 
(1843-1844),  870. 


142  THE  STATUS  OF  ALIENS  IN  CHINA  [264 

28,  1844/  the  first  article  of  which  provided  that  "  Her 
Majesty's  Consuls  shall,  within  the  limits  of  the  ports  in 
China  where  they  may  be  officially  resident,  possess  the 
same  jurisdiction,  power  and  authority  that  is  now  or  shall 
always  be  possessed  by  any  Court  of  Judicature  at  Hong- 
Kong,  save  always  as  is  hereinafter  mentioned  and  ex- 
cepted." By  the  fourth  article  it  was  provided  "  that  the 
said  Consul  shall  have  full  power  (if  he  thinks  fit  to  use 
the  same)  to  adjudicate  upon  and  determine  alone,  and  in 
a  summary  way,  all  misdemeanors  and  other  minor  offences, 
which  shall  appear  to  him  not  to  deserve  a  greater  punish- 
ment than  he  is  hereinafter  authorized  to  inflict,  and  also 
civil  suits  and  actions,  wherein  the  sum  claimed  shall  not 
exceed  500  dollars,  and  which  shall  not  be  founded  on  any 
libel,  trespass  and  other  personal  wrong."  The  next  article 
made  consular  decisions  liable  to  revision  by  the  Supreme 
Court  of  Hongkong.  By  the  sixth  article  the  consul  was 
given  "  power  and  authority  to  sentence  any  person  com- 
mitting any  misdemeanor  or  other  minor  offence,  to  pay 
a  fine  to  Her  Majesty,  her  heirs  and  successors,  not  ex- 
ceeding 200  dollars,  and  to  suffer  imprisonment  for  any 
period  not  exceeding  two  months,  and  in  case  of  non- 
payment of  any  fine  to  suffer  a  further  imprisonment  not 
exceeding  two  months  in  lieu  thereof,  or  until  the  same 
shall  be  paid."  The  ninth  article  conferred  upon  the  con- 
sul "  full  power  to  grant  probates  of  the  wills,  and  letters 
of  administration  to  the  estates  of  Her  Majesty's  subjects 
dying  or  leaving  property  within  the  limits  of  such  port  as 
aforesaid." 

For  the  purpose  of  more  effectively  enforcing  observ- 
ance of  the  treaties  between  China  and  Great  Britain,  an- 

^  Pari.  Papers,   1845.   vol.  51.    China;   2)^  Br.  and  For.   State  Papers 
(1843-T844),  871. 


265]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    143 

other  ordinance  of  April  10,  1844/  was  made,  of  which 
the  first  article  declared  certain  specified  parts  of  the 
treaties  -  to  be  ordinances  for  British  subjects  in  China  and 
within  100  miles  from  her  coast,  and  to  have  the  same  force 
and  effect  as  if  they  had  been  severally  enacted  in  the  or- 
dinance. The  second  article  gave  the  British  superinten- 
dent of  trade  and  British  consuls  in  China  "  full  power  and 
authority  to  enforce  the  due  observance  of  the  said 
Treaties,"  to  inflict  all  fines  and  penalties  provided  therein, 
to  levy  the  same  by  all  means  on  the  property  of  the  of- 
fender or  of  the  ship  to  which  he  belonged,  and  to  commit 
him  to  prison  in  default  of  paying  the  penalty.  Article 
3  provided  that 

the  said  Superintendent  of  Trade  and  Consuls,  in  addition  to 
inflicting-  the  said  fines  or  penalties,  shall  possess  full  power 
and  authority  to  arrest  and  detain  all  persons  offending- 
against  the  provisions  of  the  said  Treaties,  and  the  ships  or 
vessels  owned,  commanded,  or  navigated  by  such  persons, 
and  to  imprison  such  persons  until  they  shall  find  proper 
security  for  their  good  behaviour,  or  shall  demand  to  be  sent 
to  Hong-Kong. 

Where  the  law  of  England  or  the  treaties  themselves  did  ' 
not  provide  any  penalty  for  an  infringement  of  certain 
provisions  in  the  latter,  the  superintendent  and  the  consuls 
were  authorized  by  the  fourth  article  to  punish  such  in- 
fringement by  a  fine  not  exceeding  200  dollars  to  be  levied 
in  the  same  manner  as  other  fines.  In  cases  of  flagrant 
offences  against  the  treaty  provisions,  the  superintendent 
was  empowered  by  the  fifth  article  to  inflict  and  enforce 
on  the  offender  double  the  amount  of  any  fine  or  penalty 

^  32  Br.  and  For.  Staie  Papers  (1843-1844),  881. 

'Arts.  I,  2,  4,  6,  9,  10,  II,  12  of  the  supplementary  treaty,  and  all  the 
general  regulations. 


144  ^^^  STATUS  OF  ALIENS  IN  CHINA  [266 

which  the  consuls  were  authorized  to  inflict,  and  in  default 
of  payment,  to  commit  him  to  prison  for  double  the  term 
of  imprisonment  in  lieu  thereof. 

In  an  Order  in  Council  of  April  17,  1844/  after  reciting 
the  Chinese  Courts  of  1843  ^^^  stating: 

And  whereas  [by  the  Foreign  Jurisdiction  Act  of  August  24, 
1843, ]'  it  is  among-  other  things  enacted  that  it  is  and  shall  be 
lawful  for  Her  Majesty  to  hold,  exercise,  and  enjoy,  any 
power  or  jurisdiction  which  Her  Majesty  now  hath,  or  may 
at  any  time  hereafter  have,  within  any  country  or  place  out 
of  Her  Majesty's  dominions,  in  the  same  and  as  ample  a 
manner  as  if  Her  Majesty  had  acquired  such  power  or  juris- 
diction by  the  cession  or  conquest  of  territory:  And  whereas 
Her  Majesty  hath  power  and  jurisdiction  in  the  dominions  of 
the  Emperor  of  China: 

it  was  ordered  that  British  consuls  and  vice-consuls  resi- 
dent in  China 

shall  severally  in  the  districts  within  which  they  may  respec- 
tively be  appointed  to  reside,  have  and  hold  all  necessary 
power  and  authority  to  exercise  jurisdiction  over  British  sub- 
jects within  such  districts  as  aforesaid,  for  the  repression  and 
punishment  of  crimes  and  offences  by  them  committed  within 
the  dominions  of  the  Emperor  of  China,  and  for  the  arrange- 
ment and  settlement  of  all  and  all  manner  of  differences,  con- 
tentions, suits,  and  variances  that  may  or  shall  happen  to 
arise  between  them  or  any  of  them;  and  shall  moreover  have 
power  and  authority,  as  far  as  in  them  lies,  to  compose  and 
settle  all  and  all  manner  of  differences,  contentions,  suits,  and 
variances  that  may  or  shall  happen  to  arise  between  British 
subjects  and  the  subjects  of  the  ILmperor  of  China,  and  be- 
tween the  subjects  of  any  foreign  Power,  and  which  may  be 
broug-ht  before  them  for  settlement. 

'  Pari  Papers,  1844,  vol.  51   [556]  ;  32  Br.  and  For.  State  Papers,  895. 
*  6  &  7  Vict.,  c.  94. 


267]   ORIGIN  OF  EXTRATERRITORIAL  lURISDICTION    145 

By  the  same  Order  in  Council  British  consuls  and  vice- 
consuls  in  China  were  given  authority  to  cause  any  British 
subject  charged  with  any  crime  committed  in  China,  the 
cognizance  of  which  appertained  to  them  or  any  of  them 
to  be  sent  for  trial  to  the  colony  of  Hongkong.  It  was 
further  ordered  that  the  chief  justice  of  Hongkong  "  shall, 
when  duly  required  by  the  said  Superintendent,  proceed 
to  the  dominions  of  the  Emperor  of  China,  and  shall  have 
power  and  authority  within  the  said  dominions  to  inquire 
of,  try,  determine,  and  punish  any  crimes  or  offences  com- 
mitted by  British  subjects  within  the  said  dominions." 

This  Order  in  Council,  of  April  17,  1844,  was  the  last 
measure  taken  by  the  British  authorities  before  the  con- 
clusion of  the  treaty  of  Wanghia,  July  3,  1844,  between 
China  and  the  United  States,  to  perfect  the  machinery  of 
British  extraterritorial  jurisdiction  in  China,  the  next  step 
of  importance  being  the  ordinance  of  November  20,  1844,^ 
made  by  Sir  J.  F.  Davis,  Governor  of  Hongkong,  and  Chief 
Superintendent  after  February  9,  1844,  "  for  the  better 
administration  of  Justice  in  the  Consular  Courts,  and  to 
establish  a  Registration  of  British  subjects  within  the 
dominions  of  the  Emperor  of  China;"  which  empowered 
British  consuls  and  vice-consuls  to  compel  the  attendance 
of  British  witnesses  under  the  penalty  of  a  fine;  to  summon, 
in  more  grave  cases,  two  or  not  more  than  four  British 
subjects  to  act  as  assessors  to  assist  them  in  the  trial,  but 
not  in  the  decision,  of  such  cases;  and  to  deport  from 
China  any  British  subject,  twice  convicted  of  any  crime  in 
the  consular  court  and  unable  to  find  sufficient  and  good 
surety  for  his  future  good  behaviour;  and  which  also  pro- 
vided for  the  compulsory  registration  of  every  British 
subject  in  China  under  the  penalty  of  being  refused  the 
protection  of  the  British  Government  in  any  difficulties  in 
which  he  might  be  involved. 

1  32  Br.  and  For.  State  Papers,  886. 


146  THE  STATUS  OF  ALIENS  IN  CHINA  [268 

§  9.  Caleb  Cushing's  Theory  of  Extraterritoriality 

After  what  has  been  said  above,  it  is  scarcely  necessary 
to  remark  that  the  generally  accepted  notion  that  Caleb 
Gushing,  by  negotiating  the  treaty  of  Wanghia,  July  3, 
1844,  introduced  extraterritoriality  into  China,  is  totally 
destitute  of  foundation.  It  is  undoubtedly  true  that  the 
provisions  on  the  subjects  found  in  the  first  iVmerican  treaty 
have  the  merit  of  clearness  in  definition  and  analysis,  but 
it  is  equally  true  that  as  to  the  principle,  they  contain  noth- 
ing which  may  be  called  original.  At  the  time  when  Mr. 
Cushing  signed  his  treaty,  Great  Britain  through  her  pleni- 
potentiary. Sir  Henry  Pottinger,  had,  at  the  end  of  a  long 
and  expensive  war  and  as  a  result  of  it,  wrung  from  China 
a  reluctant  and  unprecedented  consent  to  the  broad  doctrine 
of  extraterritoriality,  and  had,  in  pursuance  of  that  express 
consent,  set  up  a  comprehensive  and  potent  machinery  for 
the  exercise  of  jurisdiction  over  her  subjects  in  China. 
Moreover,  she  had,  even  before  the  war.  claimed  and  as- 
sumed the  privilege  for  her  subjects,  in  defiance  of  the 
Chinese  Government.  Indeed,  the  American  plenipoten- 
tiary, in  preparing  his  draft  of  the  treaty,  had  the  full  benefit 
of  consulting  the  texts  of  those  already  concluded  by  Sir 
Henry,^  and,  as  will  be  presently  seen,  he  himself  acknowl- 
edged that  in  asking  for  the  privilege  of  extraterritoriality 
for  his  own  countrymen  in  China  he  was  influenced  by  the 
example  of  Great  Britain. 

There  is,  however,  one  point  in  connection  with  the  study 
of  the  origin  of  the  extraterritorial  jurisdiction  in  China 
which  calls  for  something  more  than  a  passing  notice — a 
point,  by  the  way,  which  may  have  accounted  for  the  er- 
roneous  conception   just   noted.     In   his   despatch   to   the 

'  On  April  i,  1844,  Mr.  Cusliing  requested  Viceroy  Cheng  to  send  him 
full  copies  of  the  treaties  negotiated  with  Great  Britain,  and  his  re- 
quest was  readily  acceded  to. — 14  Chinese  Repository  (1845),  361. 


269]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    i^y 

Secretary  of  State  at  Washington,  July  5,  1844/  trans- 
mitting a  copy  of  the  treaty  he  had  just  concluded,  Mr, 
Gushing  enumerated  among  the  "  peculiar  provisions " 
those  by  which  "  all  Americans  in  China  are  to  be  deemed 
subject  only  to  the  jurisdiction  of  their  own  government, 
both  in  criminal  matters,  and  in  questions  of  civil  right," 
and  stated  that  he  would  "  have  occasion  to  enter  into  these 
subjects  somewhat  in  detail."  That  occasion  he  found  on 
September  9,  1844,  when  he  sent  to  Secretary  of  State 
Calhoun  a  lengthy  communication,^  in  which  he  expressed 
himself  as  being  "  solicitous  "  to  call  attention  to  the  extra- 
territorial provisions  he  had  inserted  in  the  treaty  of 
VVanghia,  and  endeavored,  with  an  undisguised  sense  of 
triumph  and  pride,  to  justify  the  application  of  the  prin- 
ciple of  extraterritoriality  to  China  on  what  he  conceived 
to  be  principles  of  international  law.  At  the  outset,  he  had 
of  course  to  lay  down  and  consider  certain  postulates.  He 
observed  that  the  general  question  of  extraterritoriality 
was  very  imperfectly  understood :  that  "  among  the  ele- 
mentary writers  on  the  law  of  nations,  the  most  approved, 
— such  as  Vattel  and  Kliiber, — omit  to  place  in  a  proper 
light  the  all-important  fact,  that  what  they  denominate  the 
law  of  all  nations,  is,  in  truth,  only  the  international  law 
of  Christendom."  He  pointed  out  that  the  practice  of  con- 
sular jurisdiction  was  initiated  by  the  Italians  who  traded 
to  the  Levant ;  there  being  no  security  given  by  the  Moham- 
medan rulers  for  the  lives  and  property  of  Christians  com- 
mitted to  their  authority,  these  Italian  traders  formed 
themselves  into  separate  communities  and  placed  over  each 
of  them  a  consul,  who  was  to  exercise  over  it  the  same 
magisterial  functions  which  were  performed  by  similar  offi- 

1  14  Chinese  Repository  (1845),  555. 

'  S.  Ex.  Doc.  58,  28  Cong.,  2  Sess.,  4 ;  H.  Ex.  Doc.  69,  28  Cong.,  2 
Sess.,  5. 


148  THE  STATUS  OF  ALIENS  IN  CHINA  [270 

cers  in  their  native  countries  —  Pisa,  Genoa,  and  Venice. 
Just  at  this  period  Europe  itself  had  similar  usages;  the 
northern  conquerors  allowed  the  vanquished  to  be  governed 
and  tried  by  their  own  separate  laws.  Later  the  develop- 
ment of  the  state  system  on  the  continent  resulted  in  the 
gradual  disappearance  of  extraterritorial  jurisdiction,  while 
in  non-Christian  countries  the  practice  continued.  The 
inferences  which  Mr.  Gushing  drew  from  these  circum- 
stances were : 

The  extended  power  of  foreign  consuls,  still  maintained  by 
Christian  States  as  against  Mohammedan  States  was  the 
original  fact;  the  limited  power  of  foreign  consuls  within  the 
Christendom  itself  is  the  new  fact,  or  the  innovation,  which 
the  several  States  of  Christendom  have  established  and  asserted 
in  favor  of  each  of  the  completeness  of  its  respective  domain 
and  sovereignty. 

This  fact,  according  to  Mr.  Gushing,  was  "  the  result  and 
the  evidence  of  the  superior  civilization,  and  respect  for  in- 
dividual rights  consequent  thereon,  which  prevails  in  Chris- 
tendom," thus  ensuring  personal  security  to  every  foreigner, 
and  thereby  dispensing  with  the  necessity  of  exemption 
from  the  local  jurisdiction;  w^hile  "  in  semi-barbarous  Mo- 
hammedan states,  on  the  contrary,  no  Christian  feels  safe 
in  subjection  to  the  local  authorities;  and  there,  accord- 
ingly, each  Christian  state  asserts  for  its  subjects  more  or 
less  of  exemption  from  the  authority  of  the  local  sover- 
eign." 

The  propositions  he  next  laid  down  were  these: 

In  truth  and  fact,  the  subjection  of  foreigners  in  all  criminal 
matters,  and  in  most  civil,  to  the  local  jurisdiction,  and  the 
consequent  limitation  of  the  power  of  consuls,  is  the  g^eneral 
fact  in  the  states  of  Christendom. 

In  states  non-Christian,  on  the  other  hand,  the  general  fact 
is  the  exemption  of  Christians  from  the  local  jurisdiction. 


271]  ORIGIN  OF  EXTRATERRITORIAL  lURISDICTION    145 

Great  Britain  was  cited  by  the  American  envoy  as  an  ex- 
ample to  show  that  in  no  part  of  Asia,  Africa,  or  America, 
so  far  as  he  remembered,  she  had  ever  admitted  the  sub- 
jection of  her  people  .to  the  local  authorities,  unless  the 
local  authorities  were  Christian;  they  being,  with  one  or 
two  exceptions,  either  European  colonies  or  new  states 
formed  of  such  colonies;  through  the  instrumentality  of 
consuls  or  trading  companies  and  factories,  the  British 
Government  always  secured  this  exemption;  and  he  added 
that  "  such  has  been  the  practice  of  all  the  other  states 
of  Christendom,  in  their  commercial  relations  and  inter- 
course with  the  non-Christian  states  of  Asia  and  Africa." 
In  his  opinion,  the  principles  of  territorial  jurisdiction,  to 
which  even  consuls  were  subject,  they  being  exclusively 
commercial  officers, 

apply  to  the  international  intercourse  of  no  states  but  those 
of  Christendom.  For,  in  regard  to  the  various  Mohammedan 
states  ...  I  conceive  that  the  universality  of  the  practice 
anterior  to  treaties,  and  still  more  when  confirmed  in  signal 
instances  by  treaties,  of  conceding  to  Christian  foreig^ners  ex- 
emption from  the  local  jurisdiction,  renders  such  a  practice  a 
part  of  the  law  of  nations,  as  against  them  just  as  much  as  in 
the  same  way  the  opposite  rule  has  come  to  be  the  doctrine 
of  the  law  of  nations  within  the  limits  of  Christian  states. 

Having  thus  established  to  his  own  satisfaction  that  ex- 
traterritoriality for  foreigners  in  Mohammedan  countries 
became  part  of  international  law  as  against  them,  Mr. 
Gushing  stated  that  "  all  the  reasons  of  the  thing,  which 
dictate  the  assertion  of  such  a  right  i;i  behalf  of  Christian 
foreigners  in  the  Mohammedan  states,  apply  with  equal 
force  to  the  pagan  states  of  Asia  and  Africa;"  and  he  forth- 
with proceeded  to  discuss  the  case  of  China.     He  said : 

Questions   of  jurisdiction   have   arisen   frequently   in   China: 


1^0  TI'IE  STATUS  OF  ALIENS  IN  CHINA  [272 

and  these  questions  have  not  been  without  difticulty,  arising^ 
from  the  pecuHar  character  of  that  empire,  and  the  want  of 
clear  and  fixed  ideas  on  the  subject  among"  Europeans  as  well 
as  Americans. 

Nothing:,  it  would  seem,  corresponding  to  our  law  of  nations, 
is  recognized  or  understood  in  China.  I  had  some  evidence 
of  this  in  the  progress  of  my  own  intercourse  with  the  Chinese 
authorities;  and  there  is  abundance  of  public  facts  to  the  same 
effect. 

He  cited  certain  examples,  such  as  the  treatment  of  the 
British  embassies  under  Lord  Macartney  and  Lord  Am- 
herst, and  observed  that  they  evinced  "  utter  ignorance  or 
at  least  disregard,  of  the  law  of  nations  as  understood  in 
Europe."  At  the  same  time  he  admitted  that  the  Chinese 
Government  "  never  failed  to  assert  "  ''  a  complete  and  ex- 
clusive municipal  jurisdiction  over  all  the  persons  within 
the  territory  and  waters  of  the  empire,"  and  that  while 
claims  for  surrender  of  European  offenders  had  been  some- 
times successfully  resisted,  it  "  has  also  been  acquiesced  in 
sometimes  by  vessels  belonging  to  various  European  states." 
After  referring  to  the  cases  in  1780,  1784,  and  182 1,  he 
continued : 

In  all  these  cases,  the  Chinese  enforced  a  reluctant  submission 
on  the  part  of  the  foreign  residents,  by  stopping  or  threaten- 
ing to  stop  all  trade.  And  the  foreign  residents  were  the  less 
able  to  defend  themselves  against  the  claims  of  the  Chinese, 
from  not  having  any  distinct  perception  of  the  true  principle 
of  public  right  which  governed  the  subject. 

Europeans  and  Americans  had  a  vague  idea  that  they  ought 
not  to  be  subject  to  the  local  jurisdiction  of  barbarous  govern- 
ments, and  that  the  question  of  jurisdiction  depended  on  the 
question  whether  the  country  were  a  civilized  one  or  not. 
And  this  erroneous  idea  confused  all  their  reasonings  in  oppo- 
sition to  the  claims  of  the  Chinese:  for  it  is  impossible  to  deny 
to  China  a  high  degree  of  civilization,  though  the  civilization 


273]  ^^^^^^  ^^  EXTRATERRITORIAL  JURISDICTION    151 

is,  in  man}'  respects,  different  from  ours.  .  .  .  And  while  re- 
pudiating^ the  jurisdiction  of  the  local  authorities  in  China, 
Europeans  and  Americans  failed  to  perceive  that  rejection  of 
that  jurisdiction  implied  the  claim  and  admission  of  the  juris- 
diction of  their  own  g-overnment. 

Mr.  Gushing  then  commented  on  Captain  Elliot's  proceed- 
ings in  1839  and  remarked  that  in  firmly  resisting  the  sur- 
render of  certain  English  sailors  charged  by  the  Chinese 
with  homicide  and  in  himself  taking  jurisdiction  of  the 
case,  the  captain  "  had  a  right  conception  of  the  true  point 
of  this  question ;  adding  that  "  so  far  as  concerned  Great 
Britain,  the  whole  matter  was  definitively  settled  by  the  late 
treaties,  which  secured  to  British  subjects  in  China  per- 
petual exemption  from  the  local  jurisdiction,  as  elsewhere 
in  Asia,  and  exclusive  subjection  to  the  laws  and  authori- 
ties of  their  own  government."  Reverting  to  his  own 
mission  to  China,  he  stated: 

I  entered  China  with  the  formed  general  conviction  that  the 
United  States  ought  not  to  concede  to  any  foreign  state, 
under  any  circumstances,  jurisdiction  over  the  life  and  liberty 
of  any  citizen  of  the  United  States,  unless  that  foreign  state 
be  of  our  own  family  of  nations — in  a  word,  a  Christian  state. 
The  states  of  Christendom  are  bound  together  by  treaties, 
which  confer  mutual  rights  and  prescribe  reciprocal  obliga- 
tions. They  acknowledge  the  authority  of  certain  maxims 
and  usages  received  among  them  by  common  consent,  and 
called  the  law  of  nations,  but  which,  not  being  acknowledged 
and  observed  by  any  of  the  Mohammedan  or  pagan  states, 
which  occupy  the  greater  part  of  the  globe,  is  in  fact  only  the 
international  law  of  Christendom.  Above  all,  the  states  of 
Christendom  have  a  common  origin,  a  common  religion,  a 
common  intellectuality;  associated  by  which  common  ties, 
each  permits  to  the  subjects  of  the  other,  in  time  of  peace, 
ample  means  of  access  to  its  dominion  for  the  purpose  of 


152  THE  STATUS  OF  ALIENS  IN  CHINA  [274 

trade,  full  right  to  reside  therein,  to  transmit  letters  by  its 
mails,  to  travel  in  its  interior  at  pleasure,  using-  the  highway's, 
canals,  stage  coaches,  steamboats,  and  railroads  of  the  coun- 
try, as  freely  as  the  native  inhabitants.  And  they  hold  a 
regular  and  systematic  intercourse  as  governments,  by  means 
of  diplomatic  agents  of  each  residing  in  the  courts  of  the 
others,  respectively.  All  these  facts  impart  to  the  states  of 
Christendom  many  of  the  qualities  of  our  confederated 
republic. 

How  different  is  the  condition  of  things  out  of  the  limits  of 
Christendom!  From  the  great  part  of  Asia  and  Africa  indi- 
vidual Christians  are  utterly  excluded,  either  by  the  sanguinary 
barbarism  of  the  inhabitants,  or  by  their  phrenzied  bigotry, 
or  by  the  narrow-minded  policy  of  their  governments;  to  their 
courts,  the  ministers  of  Christian  governments  have  no  means 
of  access,  except  by  force,  and  at  the  heads  of  fleets  and 
armies.  As  between  them  and  us,  there  is  no  community  of 
ideas,  no  common  law  of  nations,  no  interchange  of  good 
offices;  and  it  is  only  during  the  present  generation  that 
treaties  (most  of  them  imposed  by  force  of  arms,  or  by  terror) 
have  begun  to  bring  down  the  great  Mohammedan  and  pagan 
governments  into  a  state  of  inchoate  peaceful  association  with 
Christendom. 

To  none  of  the  governments  of  this  character,  as  it  seemed 
to  me,  was  it  safe  to  commit  the  lives  and  liberties  of  citizens 
of  the  United  States. 

In  China,  I  found  Great  Britain  had  stipulated  for  the  ab- 
solute exemption  of  her  subjects  from  the  jurisdiction  of  the 
empire:  while  the  Portuguese  attained  the  same  object  through 
their  own  local  jurisdiction  at  Macao.  And,  in  addition  to 
all  the  other  considerations  affecting  the  question,  I  reflected 
how  ignominious  would  be  the  condition  of  Americans  in 
China,  if  subjected  to  the  local  jurisdiction,  whilst  the  English 
and  the  Portuguese  around  them  were  exempt  from  it. 

I  deemed  it,  therefore,  my  duty  for  all  the  reasons  assigned, 
to  assert  a  similar  exemption   in  behalf  of   citizens  of    the 


275]   ORIGIN  OF  EXTRATERRITORIAL  lURISDICTION    153 

United  States.  This  exemption  is  agreed  to,  in  terms,  by  the 
letter  of  the  treaty  of  Wanghia.  And  it  was  fully  admitted 
by  the  Chinese  in  the  correspondence  which  occurred  con- 
temporaneously with  the  negotiation  of  the  treaty,  on  occasion 
of  the  death  of  Shu  Aman. 

By  the  treaty,  thus  construed,  the  laws  of  the  Union  follow 
its  citizens,  and  its  banner  protects  them,  even  within  the 
domains  of  the  Chinese  empire. 

Here  is  then  Mr.  Cushing's  theory  of  extraterritoriality. 
Stripped  of  all  verbiage,  it  comes  to  this :  The  practice  of 
extraterritorial  jurisdiction  had  been  an  original  and  uni- 
versal fact  in  Europe,  Asia,  and  Africa;  with  the  evolution 
of  the  modern  state  in  the  first-mentioned  continent,  it 
disappeared  and  there  developed  a  common  law  of  nations 
with  its  doctrines  of  equality  and  territorial  sovereignty, 
of  which  Christian  states  alone  should  be  the  beneficiaries, 
inasmuch  as  it  was  a  creature  of  Christendom ;  while  in  the 
Mohammedan  countries  the  practice  continued  to  be  ob- 
served as  a  usage,  and  was  stibsequently  confirmed  by 
treaties.  This  being  the  case,  extraterritoriality  should  be 
considered  as  a  rule  of  international  law,  as  against  these 
countries.  The  pagan  states  were  as  much  non-Christian 
as  the  Mohammedan,  and  to  them,  therefore,  the  same  rule 
of  exemption  of  Christian  foreigners  from  the  local  juris- 
diction should  be  applied.  In  the  case  of  China,  although 
she  had,  prior  to  the  war  wnth  Great  Britain,  always  claimed 
and  exercised  jurisdiction  over  foreigners  within  her  em- 
pire, yet  stich  contention  and  practice  were  against  "  the 
true  principle  of  public  right  which  governed  the  subject," 
and  the  general  acquiescence  on  the  part  of  Europeans 
and  Americans  in  the  enforcement  of  the  local  jurisdiction 
upon  them  was  due  solely  to  their  ignorance  of  that  prin- 
ciple. Moreover,  as  manifested  by  her  pursuance  of  the 
policy  of  seclusion,  she  had  no  knowledge  whatever  of  the 


154  THE  STATUS  OF  ALIENS  IN  CHINA  [276 

law  of  nations  as  understood  in  Christendom.  There- 
fore, the  proper  rule  of  intercourse  applicable  to  China  in 
her  relations  with  the  subjects  of  Christian  nations  was, 
according  to  the  international  law  of  Christendom,  that  of 
their  exemption  from  the  territorial  jurisdiction. 

In  following,  however,  Mr.  Cushing's  excursus  on  the 
origin  and  theory  of  extraterritoriality  and  his  arguments 
in  support  of  the  application  of  that  theory  to  China,  it 
can  scarcely  fail  to  be  perceived  that  the  premises  upon 
which  he  built  his  conclusion,  however  true  they  may  have 
been  of  Europe  and  the  Levant,  with  both  of  which  he  was 
undoubtedly  familiar,  were  hardly  true  of  China.  In  the 
first  place,  the  original  fact,  found  in  western  history,  of  ex- 
tended consular  jurisdiction  and  the  domination  of  personal 
law  among  aliens  has  no  parallel  in  Chinese  history.  China 
had  already  developed  into  a  well-organized  political  en- 
tity when  foreigners  began  to  penetrate  into  her  territory; 
and  there  is  no  evidence  to  show  that  prior  to  her  modern 
treaties,  alien  law  had  ever  been  permitted  to  prevail 
among  strangers  within  her  empire  to  the  prejudice  of  the 
supreme  law  of  the  land.  In  the  second  place,  the  analogy 
which  the  American  envoy  drew  between  Mohammedan 
countries  and  China,  and  upon  which  he  based  his  applica- 
tion to  the  latter  of  the  doctrine  of  extraterritoriality  which 
had  been  persistently  practiced  by  the  former,  was  again 
inexact.  It  was  true  enough  in  Mohammedan  states  that 
religion  determined  one's  status,  that  faith  in  the  Koran 
w^as  the  fountain  and  foundation  of  all  rights  of  liberty 
and  property,  and  that  those  who  followed  a  different 
creed  had  no  status  before  their  law  and  rulers.  But  in 
China  no  such  disabilities  were  imposed  on  the  members  of 
exotic  sects ;  there  spiritual  belief  was  not  taken  as  the 
criterion  of  one's  rights ;  persons  of  all  religious  persuasions 
were  protected  by  one  law  and  ruled  over  by  one  sovereign. 


277]  ORIGIN  OF  EXTRATERRITORIAL  lURISDICTlON    155 

In  short,  the  necessity  for  the  exemption  of  foreigners  from 
the  local  jurisdiction  which  existed  in  Mohammedan  coun- 
tries by  reason  of  the  religious  basis  of  their  law  and  in- 
stitutions, did  not  arise  in  China,  where  foreigners,  as  a 
rule,  were  never  subjected  to  disabilities  on  account  of  their 
faith  in  alien  creeds. 

With  regard  to  Mr.  Cushing's  statement  of  China's 
ignorance  of  the  law  of  nations  as  understood  in  Europe, 
it  may  be  admitted  that  as  the  result  of  the  absence,  after 
the  commencement  of  the  modern  era.  of  direct  and  free 
intercourse  with  western  nations,  she  was  unacquainted 
with  many  of  the  rules  and  principles  which  regulated  the 
relations  between  the  nations  of  Christendom;  yet  at  the 
same  time  it  is  to  be  remembered  that  seclusion  had  not 
characterized  her  disposition  toward  foreign  countries  and 
their  subjects  in  the  earlier  centuries,  and  that  it  had  been 
subsequently  chosen  by  her  as  the  proper  policy  to  pursue, 
it  will  be  recollected,  only  when  it  had  become,  according 
to  her  lights,  necessary  to  the  integrity  of  her  empire  and 
the  security  of  her  interests.  If  the  American  envoy  could 
have  recalled  in  his  mind  the  difficulties  and  dangers  which 
China  had  experienced  as  the  result  of  her  earlier  unre- 
stricted intercourse  with  western  nations  and  their  subjects, 
it  is  probable  that  he  would  have  withheld  his  stricture  on 
this  score  and  rendered  an  entirely  different  opinion. 

On  the  other  hand,  if  Mr.  Cushing's  intention,  in  enter- 
ing into  the  extended  discussion  of  the  theory  of  extra- 
territorial jurisdiction  in  the  Levant  and  of  its  application 
to  China,  was  merely  to  justify  his  taking  the  initiative  to 
insert  two  extraterritorial  provisions  in  his  own  treaty,  it 
would  have  been  sufficient  for  him  simply  to  point  to  the 
example  of  the  British  treaties  as  a  precedent.  By  war 
Great  Britain  had  succeeded  in  coercing  China  to  relinquish, 
in  favor  of  the  British  Government,  her  rightful  jurisdic- 


156  THE  STATUS  OF  ALIENS  IN  CHINA  [278 

tion  over  the  British  subjects  within  her  territory;  and 
concessions  of  rights,  such  as  this,  wrung  out  of  one 
nation  by  another  in  consequence  of  the  successful  applica- 
tion of  force,  constituted,  as  they  still  do  now.  a  lawful 
prize  of  victory,  inasmuch  as  force  was  then  as  now  a  law- 
ful means  for  any  nation  that  chose  to  employ  it.  The 
United  States,  whose  commercial  interests  in  China  were  as 
extensive  as  those  of  Great  Britain,  could  not,  as  it  would 
be  "  ignominious,"  bear  seeing  British  subjects  in  China 
more  favorably  treated  by  the  Chinese  Emperor  than  its 
own  citizens ;  and  the  American  negotiator  of  the  treaty  of 
Wanghia  might  well  have  rested  content  with  placing  the 
extraterritorial  provisions  of  his  making  on  such  a  simple 
ground  as  that  of  equality  of  treatment,  as  he  might  have 
thus  escaped  the  onus  of  justifying  theoretically  a  prin- 
ciple which  was  not  applicable  to  China. 

But  one  significant  circumstance,  however,  appears  to  be 
that  Mr.  Cushing's  instructions  on  the  question  of  juris- 
diction over  United  States  citizens  in  China  did  not  leave 
him  as  much  discretion  as  he  needed ;  that  in  demanding,  of 
his  own  initiative,  and  obtaining  the  privilege  of  exemption 
from  the  local  jurisdiction  in  favor  of  his  countrymen  in 
China,  he  probably  apprehended  that  in  so  doing  he  had 
run  counter  to  the  wishes  of  his  Government  and  conse- 
quently felt  the  necessity  of  explaining  his  action  on  some 
broader  and  loftier  ground  than  that  of  a  solitary  prece- 
dent established  by  the  arms  of  another  nation.  What  the 
wishes  of  the  United  States  Government  were  on  the  ques- 
tion may  be  easily  gathered  from  the  following  passage 
taken  from  President  John  Tyler's  letter  ^  to  the  Emperor 
of  China.  July  12,  1843,  o^  which  Mr.  Gushing  as  "envoy 
extraordinary  and  minister  plenipotentiary  of  the  United 

'  S.  Ex.  Doc.  138,  28  Cong.,  2  Sess.,  8. 


279]   0^^^^^  OP  EXTRATERRITORIAL  JURISDICTION    157 

States  of  America  to  the  Court  of  Peking,"  ^  was  the  offi- 
cial bearer : 

The  Chinese  love  to  trade  with  our  people,  and  to  sell  them 
tea  and  silk,  for  which  our  people  pay  silver,  and  sometimes 
other  articles.  But  if  the  Chinese  and  the  Americans  will 
trade,  there  shall  be  rules,  so  that  they  shall  not  break  your 
laws  or  our  laws.  Our  minister,  Caleb  Cushing",  is  author- 
ized to  make  a  treaty  to  regulate  trade.  Let  the  people  trade 
notfonly  at  Canton,  but  also  at  Amoy,  Ningfpo,  Shang^hai, 
Fuchau,  and  all  such  other  places  as  may  offer  profitable  ex- 
changes both  to  China  and  the  United  States,  provided  they 
do  not  break  your  laws  nor  our  laws.  We  shall  not  take  the 
part  of  evil  doers.  We  shall  not  uphold  them  that  break 
your  laws. 

The  emphasis  here  laid  upon  the  indispensable  condition  to 
the  prosecution  of  trade  of  observance  of  the  territorial 
laws  undoubtedly  indicates  a  strong  desire  on  the  part  of 
the  United  States  Government  to  leave  the  conduct  of  its 
citizens  in  China  to  be  regulated  by  the  Chinese  law;  and 
if  it  is  said  that  the  passage  was  probably  prompted  by  a 
wish  on  the  part  of  President  Tyler  to  intimate  that  his 
country  would  not  undertake  to  protect  its  merchants  from 
the  consequences  of  engaging  in  illegal  traffic,  such  as  that 
of  opium,  the  statement  only  further  strengthens  the  in- 
ference as  to  the  desire  of  the  American  Government.     It 

*  This  first  American  embassy  to  China  was  organized  after  Congress 
had  made  in  January,  1843,  an  appropriation  of  $40,000  (H.  Jour.,  27 
Cong.,  3  Sess.,  605),  recommended  by  President  Tyler  in  a  special  mes- 
sage of  December  30,  1842  (H.  Ex.  Doc.  35,  27  Cong.,  3  Sess.),  "  for 
the  compensation  of  a  commissioner  to  reside  in  China,  to  exercise  a 
watchful  care  over  the  concerns  of  American  citizens,  and  for  the  pro- 
tection of  their  persons  and  property;  empowered  to  hold  intercourse 
with  the  local  authorities,  and  ready,  under  instructions  from  his  Gov- 
ernment, should  such  instructions  become  necessary  and  proper  here- 
after, to  address  himself  to  the  high  functionaries  of  the  Empire  or, 
through  them,  to  the  Emperor  himself." 


1^8  THE  STATUS  OF  ALIENS  IN  CHINA  [280 

is  possible  that  Mr.  Gushing  had  no  opportunity  of  appriz- 
ing himself  of  the  contents  of  the  presidential  epistle,  but 
then  he  received  from  Daniel  Webster.  Secretary  of  State, 
May  8,  1843,  instructions  ^  about  the  proposed  treaty  which 
appear  to  point  clearly  in  the  same  direction  as  to  the  in- 
tentions of  his  Government  on  the  question.  Tn  one  place 
the  instructions  read : 

You  will  state  in  the  fullest  manner  the  acknowledgment  ot 
this  Government,  that  the  commercial  regulations  of  the 
empire,  having  become  fairly  and  fully  known,  ought  to  be 
respected  by  all  ships  and  persons  visiting  its  ports;  and  if 
citizens  of  the  United  States,  under  these  circumstances,  are 
found  violating  well-known  laws  of  trade,  their  Government 
will  not  protect  them  from  the  consequences  of  their  own 
illegal  conduct. 

Again,  in  the  closing  paragraph  there  is  this  clause: 

It  is  hoped  and  trusted  that  you  will  succeed  in  making  a 
treaty  such  as  has  been  concluded  between  England  and  China 
[of  August  29,  1842] ;  and  if  one  containing  fuller  and  more 
regular  stipulations  could  be  entered  into,  it  would  be  con- 
ducting Ghinese  intercourse  one  step  further  towards  the 
principles  which  regulate  the  public  relations  of  the  European 
and  American  States. 

And  there  can  scarcely  be  any  doubt  that  tlie  recognition 
of  Ghina's  plenary  jurisdiction  over  aliens  within  her  terri- 
tory would  have  been  a  more  regular  stipulation,  and  made 
Ghina's  foreign  intercourse  a  nearer  approach  to  the  public 
relations  of  Europe  and  America,  than  its  complete  di- 
vestiture. 

Moreover,  the  records  of  the  time  do  not  show  that  the 
I'nited  States  merchants  in  Ghina  had  expressed  a  firm  de- 

'  S.  Ex.  Doc.   1,38,  28  Cong.,  2  Sess.,  i. 


28l]  ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    i^n 

sire  for  their  exemption  from  the  local  jurisdiction.  On 
the  contrary,  it  appears  that  they  were  fully  disposed  to 
submit  themselves  to  the  control  of  Chinese  law  as  a  matter 
of  course.  The  surrender  of  the  offender  in  the  case  of 
Terranova  in  1821,  and  the  declaration  of  intention  they 
made  on  that  occasion  always  to  abide  the  territorial  law, 
have  already  been  noted.^  Besides,  in  a  memorial  of  May 
25,  1839,^  addressed  by  eight  American  merchants  at 
Canton  to  Congress  at  Washington,  requesting  their  Gov- 
ernment "  to  establish  commercial  relations  with  this  em- 
pire upon  a  safe  and  honorable  footing,"  the  only  demand 
relative  to  the  question  of  jurisdiction  was : 

6th.  That  until  the  Chinese  laws  are  distincth-  made  known 
and  recognized,  the  punishment  for  wrongs  committed  by 
foreigners  upon  Chinese,  or  others,  shall  not  be  greater  than 
is  applicable  to  the  like  offence  by  the  laws  of  the  United 
States  or  England;  nor  shall  any  punishment  be  inflicted  by 
the  Chinese  authorities  upon  any  foreigner,  until  the  guilt  of 
the  party  shall  have  been  fairly  and  clearly  proved. 

In  fact  even  this  proposal  appears  to  have  been  thought  as 
unwise  by  other  Americans  in  China.  For  in  a  later  me- 
morial ^  to  Congress  signed  by  thirty-six  merchants  of 
Boston  and  Salem,  Mass.,  it  was  stated: 

While  the  undersigned  would  advocate  strongly  the  sending 
of  a  national  force  to  China,  for  the  protection  of  American 
commerce  from  illegal  aggression,  they  would  deprecate  the 
delegation  to  its  commander,  or  to  any  other  person  at  this 
time,  of  any  powers  to  interfere  in  the  contest  between  Eng- 

1  Supra,  p.  54. 

*  Read  in  Congress,  January  13,  1840,  H.  Ex.  Doc.  40,  26  Cong.,  i  Sess. 

*  Referred  to  House   Committee  on  Foreign  Affairs,   April  9,    1840. 
H.  Ex.  Doc.  170,  26  Cong.,  i  Sess. 


l6o  THE  STATUS  OF  ALIENS  IN  CHINA  [282 

land  and  China,  or  to  enter  into  any  diplomatic  arrangfement 
whatever. 

They  would  represent,  that  the  character,  laws,  and  cus- 
toms, of  the  Chinese  nation,  are  so  little  understood,  that, 
even  granting  our  right  to  demand  a  change  in  their  foreign 
policy,  it  would  be  unwise  to  authorize  an  envoy  to  negotiate 
with  them  until  the  whole  subject  had  been  examined  and 
considered  in  our  national  councils  with  all  procurable  in- 
formation before  them. 

And  in  view  of  these  two  memorials,  the  portions  quoted 
above  from  President  Tyler's  letter  to  the  Chinese  Emperor 
and  Mr.  Webster's  instructions  to  Mr.  Cushing,  emphasiz- 
ing the  duty  of  the  American  citizens  in  China  to  observe 
the  territorial  laws,  appear  to  be  all  the  more  significant, 
since  it  is  not  improbable  that  these  documents  were  drawn 
up  in  accordance  with  the  opinion,  and  to  meet  the  desires, 
of  those  most  closely  concerned  in  the  matter — the  United 
States  citizens  in  China. 

Nor  would  it  be  altogether  forcing  the  point  to  say  that 
as  a  concession  of  privilege,  the  extraterritorial  provisions 
in  the  treaty  of  Wanghia  were  not  of  as  much  importance 
as  the  American  negotiator  appears  to  have  attributed  to 
them,  inasmuch  as  England,  in  obtaining  extraterritoriality 
as  well  as  other  rights  for  the  British  subjects  in  China  in 
1842,  avowedly,  had  not  sought  for  exclusive  privileges; 
and  as  China,  having  once  been  compelled  by  force  to  yield 
the  principle  of  territorial  jurisdiction  to  one  foreign  na- 
tion, had  apparently  been  prepared  to  accord  equal  treat- 
ment in  this  respect,  if  she  had  not  actually  done  so  at  the 
moment  when  Mr.  Cushing  reached  China,  to  all  others  that 
were  then  represented  commercially  at  Canton.  Queen 
Victoria,  in  her  speech  before  Parliament,  February  i. 
1844,  said,  "  Throughout  the  whole  course  of  my  negotia- 
tions with  the  Government  of  China,  I  have  uniformly  dis- 


283]   ORIGIN  OF  EXTRATERRITORIAL  WRISDICTION    161 

claimed  the  wish  for  any  exclusive  advantage;  "  ^  and  the 
Earl  of  Aberdeen,  when  asked  in  the  House  of  Lords, 
on  February  6,  following,  whether  the  omission  of  a  pro- 
vision to  this  effect  in  the  British  treaty  was  "  purely 
accidental  ",  replied  that  it  had  always  been  the  desire  of 
the  Government  that  the  privileges  acquired  by  Great 
Britain  "  should  be  extended  to  all  nations  alike;"  that  al- 
though it  did  not  appear  in  the  first  treaty,  he  had  no 
doubt  that  a  clause  had  been  inserted  in  the  supplementary 
treaty  signed  by  Sir  Henry  Pottinger  and  the  Chinese 
commissioner,  although  the  text  had  not  been  transmitted 
to  England;  and  that,  further,  to  show  how  justified  was 
Her  Majesty  in  declaring  what  had  been  the  principle  with 
regard  to  the  negotiations  with  China  he  had  only  to  quote 
a  paragraph  from  his  instructions  of  November  4,  1841, 
to  Sir  Henry,  to  the  effect  "  that  he  should  constantly  bear 
in  mind,  that  we  sought  for  no  exclusive  advantage,  and  de- 
manded nothing  which  we  were  not  willing  to  see  enjoyed 
by  the  subjects  of  all  other  states."  ^ 

On  the  part  of  China,  it  appears  that  after  the  general 
regulations  embodying  the  privilege  of  extraterritoriality 
for  Englishmen  in  China  were  concluded,  imperial  edicts 
were  issued,  granting  "  to  all  foreign  Countries  whose 
Subjects,  or  Citizens,  have  hitherto  traded  at  Canton  the 
privilege  of  resorting  for  purposes  of  Trade  to  the  other 
four  Ports  of  Fuchow,  Amoy,  Ningpo  and  Shanghai,  on 
the  same  terms  as  the  English."  ^  Besides,  in  a  note  to 
Mr.  Gushing,  April  19,  1844,'*  in  reply  to  his  proposal  to 

'32  Br.  and  For.  State  Papers  (1843-1844),  i. 

*  72  Hansard  (1844),  267. 

'  Article  VIII,  British  treaty  of  Oct.  8,  1843,  Treaties  between  China 
and  Foreign  States,  i,  .p.  204. 

*  14  Chinese  Repository  (1845),  364. 


l62  THE  STATUS  OF  ALIENS  IN  CHINA  [284 

proceed  to  Peking  and  negotiate  a  separate  treaty  for  the 
United  States,  Viceroy  Ching  stated : 

At  present,  the  trade  of  every  country  with  China  is  harmon- 
ious, and  every  point  relating-  thereto  is  properly  adjusted, 
which  was  accomplished  when  the  imperial  commissioner 
Tsiyeng-  [Kiying] ,  in  conjunction  with  the  present  acting 
governor,  deliberated  upon  and  settled  with  the  English  pleni- 
potentiary, Pottinger,  repeatedly  discussing  them  until  we 
had  arranged  and  fully  agreed  upon  them  all.  The  consuls  of 
every  nation  were,  moreover,  to  act  in  every  particular  ac- 
cording to  this  same  arrangement.  Henceforth,  China  and 
foreign  nations  would  be  at  peace,  gladness  and  prosperity 
would  be  without  limit,  and  joyful  contentment  every- 
where diffused. 

Let  your  excellency,  in  order  to  prove  this,  take  the  several 
regulations  which  I,  the  acting  governor,  on  that  occasion, 
promulgated,  and  again  with  your  country's  consul,  Forbes, 
examine  the  former  general  regulations  with  those  which  were 
subsequently  agreed  upon,  and  carefully  look  over  them  all, 
and  he  will  then  know  that  our  august  emperor  tenderly 
cherishes  men  from  afar,  and  that  whatever  would  be  of  ad- 
vantage to  the  merchants  of  every  nation  has  certainly  been 
done  to  the  utmost. 

In  a  word,  according  to  the  viceroy,  whatever  had  been 
granted  to  the  British  subjects  in  China  was  also  enjoyable 
by  citizens  of  the  United  States,  and  therefore,  to  use  his 
own  expression,  "  it  is  useless,  with  lofty,  polished,  and 
empty  words,  to  alter  these  unlimited  advantages."  ^ 

In  truth,  in  the  case  of  Sue  Aman,  which  occurred  on 
June  16,  1844,  five  days  before  the  negotiations  on  the 
treaty  of  Wanghia  were  opened,  in  which  a  Chinese  by  that 
name  was  killed  by  an  American  at  Canton,  although  Mr. 
Cashing  notified  the  American  consul  that  he  thought  it 

1  14  Chinese  Repository  (1845).  357- 


285]  ORIGIN  OF  EXTRATERRITORIAL  lURISDICTION    163 

desirable  to  inform  his  countrymen  that  he  would  "  refuse 
at  once  all  applications  for  the  surrender  of  the  party  who 
killed  Sue  Aman,"  ^  no  demand  for  his  delivery  appears  to 
have  been  made,  but,  on  the  contrary,  the  local  authorities 
appear  to  have  considered  that  the  American  consul  should 
himself  decide  the  case  in  accordance  with  the  new  regu- 
lations of  trade.  It  is  true  that  in  Viceroy  Ching's  letter 
to  Mr.  Gushing,  June  18,  1844,^  as  translated  by  E.  C. 
Bridgman,  Chinese  secretary,  there  is  this  clause :  "  But 
it  has  been  ascertained  that  the  native  Aman  was  shot  in 
the  space  before  the  factories  by  an  American;  and  the 
said  consul  should  himself  know  that  he  ought  immediately 
to  make  a  full  inquiry  into  the  matter,  and  deliver  up  the 
real  murderer,  that  the  case  may  be  equitably  judged,  and 
no  untoward  event  arise  out  of  it."  Yet  the  same  paragraph 
containing  the  clause  concludes  with  this  statement: 

The  people  are  highly  irritated  against  the  offender,  and  it  is 
impossible  but  that  they  have  constant  debates  among-  them- 
selves until  they  are  revenged.  The  said  consul,  knowing  the 
feelings  of  the  people  for  times  past,  should  inquire  closely 
into  the  affair  and  himself  decide  it  quickly,  that  it  do  not  be- 
come in  the  mouths  of  the  people  an  occasion  for  collision. 
I  hope  you  will  by  no  means  delay,  as  it  is  for  this  that  I  send 
this  important  statement. 

The  viceroy's  language  here  conveys  rather  the  idea  of 
complaint  against  procrastination  on  the  part  of  the  con- 
sul in  proceeding  against  the  offender  than  a  positive  de- 
mand for  the  latter's  surrender  for  trial  by  the  Chinese 
authorities.  And  this  would  seem  to  be  borne  out  also  by 
the  remaining  correspondence  on  the  case.     On  June  24, 

^  Mr.  Gushing  to  Consul  Forbes,  June  22,  1844,  ibid.,  525. 
'  14  Chinese  Repository  (1845),  488. 


1 64  THE  STATUS  OF  ALIENS  IN  CHINA  [286 

1844,  Mr.  Gushing  sent  a  brief  note  ^  to  the  viceroy, 
Kiying,  as  follows : 

I  assure  your  excellency  that  I  deeply  regret  what  has  oc- 
curred. I  have  caused  to  be  instituted  a  careful  inquiry  into 
all  the  facts  of  the  case,  and  shall  take  every  step  in  my  power 
to  see  that  full  justice  be  done  in  the  premises,  feeling-  most 
solicitous  that  harmony  and  good  understanding  may  continue 
to  exist,  as  well  between  the  people  of  our  respective  coun- 
tries as  between  their  governments. 

In  reply  to  this,  the  viceroy  on  June  28,  1844,  observed:  ^ 

Since  your  excellency  has  already  transmitted  orders  to  the 
resident  consul,  Forbes,  that  he  make  thorough  inquiry  into 
the  matter,  and  report  to  you,  it  is  to  be  seen  that  it  will  be 
conducted  according  to  equity  and  right.  But  it  is  important 
that  both  sides  be  equally  satisfied,  in  order  to  cause  the  minds 
of  the  people  to  submit ;  ...  If  there  is  one  particle  of 
heavenly  goodness,  let  this  business  by  all  means  be  judged 
on  equitable  grounds,  so  that  there  be  no  room  for  cavilling 
remarks  (in  future).  Then  will  it  be  easy  to  protect  and 
guard;  and  by  the  power  of  right  thus  operating,  our  mutual 
feelings  for  each  other  will  become  as  they  were  formerly.  I 
think  that  your  excellency,  too,  is  of  the  same  opinion  as  this. 

And  in  his  letter  of  August  8,  1844,^  acknowledging  re- 
ceipt of  Mr.  Cushing's  report  of  the  settlement  of  the  case 
by  the  consul  in  accordance  with  his  own  directions,*  Vice- 
roy Kiying  simply  observed  that  the  provincial  treasurer 

1  14  Chinese  Repository  (1845),  490- 

*  Ibid.,  492.  '  Ibid.,  532. 

*  On  July  II,  1844,  six  American  residents  of  Canton,  who  were 
summoned  by  the  consul  in  pursuance  of  Mr.  Cushing's  order,  "  having 
heard  the  evidence  placed  before  them,  are  unanimously  of  opinion  that 
the  killing  was  a  justifiable  act  of  self-defence." — Ibid.,  526. 


287]   ORIGIN  OF  EXTRATERRITORIAL  JURISDICTION    165 

had  already  transmitted  a  communication  from  Consul 
Forbes,  in  which  it  was  pointed  out  that  Daniel,  who  killed 
Sue  Aman  by  accident,  had  been  delivered  over  to  Gushing 
"  to  be  returned  to  his  country,  to  be  dealt  with  according 
to  its  laws;  and  that  the  treasurer  had  examined  and  as- 
certained that  this  is  in  accordance  with  the  treaty." 

Finally,  the  unusual  expedition  with  which  the  treaty  of 
Wanghia  was  concluded,  the  whole  course  of  the  negotia- 
tions occupying  scarcely  two  weeks,  seems  also  to  lend  sup- 
port to  the  proposition  that  in  all  probability  the  Chinese 
authorities  considered  the  question  of  jurisdiction  over  the 
foreigners  within  their  territory  to  have  been  settled  once 
for  all  in  their  earlier  negotiations  with  Sir  Henry  Pot- 
tinger,  the  British  plenipotentiary. 


CHAPTER  X 

Protection  Under  the  Extraterritorial  Jurisdiction 

§  I.  Criminal  Matters  Involving  Chinese  and  Aliens 

The  preceding  section  on  the  origin  of  the  extraterri- 
torial jurisdiction  in  China  has  made  it  clear  that  the  es- 
sence of  extraterritoriality,  as  claimed  by  Great  Britain  and 
as  finally  granted  by  China,  consists  in  the  exemption  from 
the  jurisdiction  of  the  local  authorities  and  the  submission 
to  that  of  one's  own  nation  specially  erected  within  the 
territory.  It  now  remains  to  compare  the  provisions  in 
the  principal  treaties  in  which  China  has  conceded  this 
broad  principle  of  jurisdiction,  to  consider  the  manner  in 
which,  and  the  means  with  which,  the  treaty  powers  put 
this  principle  into  practice,  and  to  see  to  what  extent  aliens 
are  thus  protected  or  exempted  from  the  operation  of 
Chinese  laws.^ 

In  studying  these  problems,  let  us  take  up  first  the  ques- 
tion of  crimes  and  their  punishment.  The  thirteenth  of  the 
general  regulations  of  trade,  July  22,  1843,  which  were 
subsequently  incorporated  in  to  to  in  the  supplementary 
treaty  with  Great  Britain  of  October  8,  1843,  was  the  first 
explicit  statement  of  the  principle  of  extraterritoriality 
granted  by  China.  As  has  already  been  seen,  it  provided 
that  the  punishment  of  English  criminals  should  be  left 
to  the  English  Government  which  would  enact  the  laws 

'  For  all  treaty  provisions  quoted  or  referred  to  in  this  section,  see 
Treaties  betzveen  China  and  Foreign  States,  which  alone  is  consulted 
unless  otherwise  indicated. 

l66  [288 


289]  PROTECTION  UNDER  JURISDICTION  167 

necessary  to  attain  that  end,  and  which  would  empower  its 
consuls  to  put  them  in  force.  But  while  the  credit  for  tak- 
ing the  initiative  and  establishing  a  precedent  must  be 
awarded  to  the  British  compact,  it  is  the  American  treaty 
of  July  3,  1844,  which  defined  for  the  first  time  with 
lucidity,  fulness  and  precision,  the  principle  of  extraterri- 
torial jurisdiction  in  China.  Article  XXI  of  this  treaty 
provided : 

Subjects  of  China  who  may  be  guilty  of  any  criminal  act 
towards  citizens  of  the  United  States  shall  be  arrested  and 
punished  by  Chinese  authorities  according  to  the  laws  of  China, 
and  citizens  of  the  United  States  who  may  commit  any  crime 
in  China  shall  be  subject  to  be  tried  and  punished  only  by  the 
Consul  or  other  public  functionary  of  the  United  States,  thereto 
authorized  according  to  the  laws  of  the  United  States ;  and  in 
order  to  the  prevention  of  all  controversy  and  disaffection, 
justice  shall  be  equitably  and  impartially  administered  on 
both  sides. 

The  broad  principle  thus  stated  was  taken  by  France  as 
the  basis  of  a  similar  provision  in  her  own  treaty  with 
China  concluded  at  Whampoa,  October  24,  1844.  Article 
XXVII  of  the  French  compact  read : 

Si,  malheureusement  il  s'elevait  quelque  rixe  ou  quelque 
querelle  entre  des  Franqais  et  des  Chinois  comme  aussi  dans 
le  cas  ou  durant  le  cours  d'une  semblable  querelle  un  ou 
plusieurs  individus  seraient  tues  ou  blesses,  soit  autrement  les 
Chinois  seront  arretes  par  I'autorite  chinoise,  qui  se  chargera 
de  les  faire  examiner  et  punir,  s'il  y  a  lieu  conformement  aux 
lois  du  pays.  Quant  aux  Frangais,  ils  seront  arretes  a  la 
diligence  du  consul,  et  celui-ci  prendra  toutes  les  mesures 
necessaires  pour  que  les  prevenus  soient  livres  a  Taction  regu- 
liere  des  lois  franqaises,  dans  la  forme  et  suivant  les  disposi- 
tions qui  seront  ulterieurement  determinees  par  le  gouverne- 
ment  frangais. 


1 68  THE  STATUS  OF  ALIENS  IN  CHINA  [290 

II  en  sera  de  meme  en  toute  circonstance  analogue  et  non 
preMie  dans  la  presente  convention,  le  principe  etant  que,  pour 
le  repression  des  crimes  et  delits  commis  par  eux  dans  les 
cinq  ports,  les  Fran(^ais  seront  constamment  regis  par  la  loi 
frangaise. 

It  will  be  noted  that  the  statement  of  the  principle  of 
extraterritoriality,  as  respects  crimes  committed  by  French- 
men, is,  if  not  more  explicit,  certainly  more  emphatic  still 
than  that  which  was  found  in  the  American  treaty.  It  is, 
however,  not  so  broad:  the  application  of  the  principle  was 
evidently  intended  to  be  limited  to  crimes  and  delicts  com- 
mitted by  Frenchmen  "  dans  les  cinq  ports ;"  while  by  the 
terms  of  the  United  States  treaty  it  was  stated  with  suffi- 
cient comprehensiveness  to  cover  any  crime  committed  "  in 
China  "  by  citizens  of  the  United  States.  The  restrictive 
phrase  in  question  was  later  replaced  perhaps  intentionally 
by  the  words  "en  Chine"  in  Article  XXXVIII  of  the 
French  treaty  of  Tientsin,  June  27,  1858. 

Another  point  of  difference  between  the  two  articles 
quoted  respectively  from  the  first  American  and  the  first 
French  treaty  may  be  noted.  Whereas  the  former  article 
stipulated  that  Chinese  subjects  guilty  of  any  criminal  act 
towards  United  States  citizens  shall  be  "  arrested  and  pun- 
ished by  the  Chinese  authorities  and  that  citizens  of  the 
United  States  guilty  of  any  crime  in  China  shall  be  subject 
to  be  "  tried  and  punished,"  not  "  arrested  and  punished," 
by  authorized  functionaries  of  their  own  nation,  the  latter, 
while  leaving  Chinese  offenders  to  be  arrested  by  Chinese 
authorities  provided :  "  Quant  aux  Frangais,  ils  seront 
arretes  a  la  diligence  du  Consul,  etc."  In  other  words, 
while  United  States  citizens  guilty  of  a  crime  in  China 
might  be  arrested  by  Chinese  authorities,  this  right  seems 
to  have  been  relinquished  by  China  as  regards  French 
criminals.     The  difference  is  borne  out  in  later  compacts 


291]  PROTECTION  UNDER  JURISDICTION  169 

with  the  two  countries,  which  remain  in  force  to-day. 
Article' XXXVIII  of  the  French  treaty,  June  27,  1858, 
reproduces  Article  XXVII  of  the  treaty  of  Whampoa,  with 
one  modification  already  noted  above,  and  not  concerning 
the  point  now  under  consideration;  on  the  other  hand, 
Article  XI  of  the  American  treaty  signed  June  18,  1858, 
expressly  confirms  the  retention  by  Chinese  authorities  of 
the  right  recognized  by  the  treaty  of  1844,  to  arrest  Ameri- 
cans committing  crimes  in  China.  This  has  been  done  by 
leaving  out,  in  the  second  treaty,  the  word  "  arrested  "  in 
the  clause  as  to  Chinese  offenders  found  in  the  first  treaty, 
namely,  "  shall  be  arrested  and  punished  by  the  Chinese  au- 
thorities," and  also  by  adding  a  new  clause,  which,  by  the 
way,  is  reciprocal  by  its  terms,  providing :  "  arrests  in  order 
to  trial  may  be  made  by  either  the  Chinese  or  the  United 
States  authorities." 

The  line  of  cleavage  drawn,  perhaps  unconsciously,  on 
the  question  of  arrest  of  foreigners  committing  criminal 
acts  in  China,  is  traceable  in  the  treaties  with  other  powers. 
Article  XXI  of  the  first  American  treaty  was  copied  almost 
literally  in  that  with  Norway  and  Sweden,  March  20. 
1847,  ^Jtid  in  the  British  treaty  of  June  26,  1858.  Similarly, 
the  treaties  with  Russia,  June  1-13,  1858,  with  Portugal, 
August  13,  1862,  with  Spain,  October  10,  1864,  with  Japan, 
July  21,  1896,  contain  no  provision  which  requires  their 
respective  subjects,  accused  of  a  crime  in  China,  to  be  ar- 
rested only  by  the  functionaries  of  their  own  nation.  On 
the  other  hand,  in  harmony  with  the  French  treaties,  which 
deny  China  the  right  to  arrest  French  offenders  in  China, 
are  those  with  Germany,  September  2,  1861,  with  Den- 
mark, July  13,  1863,  with  Belgium,  November  2,  1865, 
with  Italy,  October  26,  1866,  with  Austria-Hungary,  Sep- 
tember 2,  1869,  with  Brazil,  October  3,  1881,  and  with 
Mexico,  December  14,  1899. 


170  THE  STATUS  OF  ALIENS  IN  CHINA  [292 

It  must  be  pointed  out,  however,  that  the  discrepancy  in 
the  treaties  referred  to  as  to  the  exercise  by  Chinese  au- 
thorities of  restraint  upon  foreign  persons  applies  only  in 
places  open  to  foreign  commerce.  Where  subjects  of  treaty 
powers  charged  with  a  crime  perpetrated  in  open  ports, 
have  escaped  into  the  interior,  or  where  they  commit  crim- 
inal acts  in  the  interior,  or  in  treaty  ports  where  their  nation 
is  not  represented,  the  treaties  generally  provide  that  the 
accused  shall  be  arrested,  taken  custody  of,  and  conducted 
by  the  Chinese  local  authorities  to  the  nearest  place  where 
their  consul  resides,  for  trial  and  punishment/ 

§  2.  Civil  Matters  Involving  Chinese  and  Aliens 
As  regards  disputes  between  Chinese  and  foreign  sub- 
jects in  China,  the  provisions  of  the  treaties  concluded  with 
foreign  powers  are  generally  similar  in  language  and 
meaning.  Article  XIII  of  the  general  regulations  incor- 
porated into  the  supplementary  treaty  with  Great  Britain, 
October  8,  1843,  prescribed  two  modes  of  settling  mixed 
controversies,  which  are  still  followed  to-day.  Although 
this   article   along   with   the   remaining   provisions   of   the 

'  By  article  xiii  of  the  treaty  with  Japan,  September  13,  1871,  which 
was  abrogated  by  that  of  Shimonoseki,  April  17,  1895,  it  was  provided, 
however,  that  subjects  of  each  contracting  party  in  the  dominions  of 
the  other,  when  accused  of  a  crime  committed  therein,  should  be 
arrested  by  the  local  authority,  and  if  resisting  capture  with  weapons 
of  a  murderous  nature,  might  be  slain  in  the  act  without  further  conse- 
quences beyond  communicating  a  report  of  the  killing  to  the  consul; 
that  those  subjects  guilty  of  a  crime,  if  at  a  port,  should  be  jointly 
tried  by  the  consul  and  the  local  authority,  and  if  in  the  interior,  they 
should  be  tried  and  dealt  with  by  the  local  authority  with  an  official 
report  to  the  consul;  that  in  cases  where  a  subject  of  one  contracting 
party,  in  the  dominions  of  the  other,  collected  persons  to  the  number 
of  ten  or  more,  conspiring  to  create  disorder,  he  should  be  tried 
jointly  by  his  consul,  or  solely  by  the  local  authority,  according  as  the 
crime  was  committed  in  the  port  or  in  the  interior;  in  either  case, 
however,  the  execution  was  to  be  performed  at  the  scene  of  the  com- 
mission of  the  offence. 


293]  PROTECTION  UNDER  JURISDICTION  ^yi 

general  regulations  was  abrogated  by  the  treaty  of  June 
26,  1858,  its  contents  were  repeated  in  identical  form  in 
article  XVII  of  the  latter  compact  which  reads : 

A  British  subject  having  reason  to  complain  of  a  Chinese  must 
proceed  to  the  Consulate  and  state  his  grievance.  The  Consul 
will  inquire  into  the  merits  of  the  case  and  do  his  utmost  to 
arrange  it  amicably.  In  like  manner,  if  a  Chinese  have  reason 
to  complain  of  a  British  subject,  the  Consul  shall  no  less  listen 
to  his  complaint  and  endeavor  to  settle  it  in  a  friendly  manner. 
If  disputes  take  place  of  such  a  nature  that  the  Consul  cannot 
arrange  them  amicably,  then  he  shall  request  the  assistance  of 
the  Chinese  authorities,  that  they  may  together  examine  into 
the  merits  of  the  case  and  decide  it  equitably. 

Thus  the  two  modes  of  settling  disputes  between  Chinese 
and  British  subjects  are  amicable  arrangement  through  the 
the  Consul  and  prosecution  of  a  suit  to  be  examined  and 
decided  by  the  authorities  of  the  two  nations.  The  same 
system  is  provided  in  the  treaties  with  France,  Russia,  Ger- 
many, Belgium,  Italy  and  Austria-Hungary. 

The  American  treaty  of  1858  reproduces  with  no  ma- 
terial change  the  articles  contained  in  the  treaty  of  1844  on 
the  subject  of  civil  disputes  between  Chinese  and  Americans 
in  China.     Article  XXIV  reads : 

When  there  are  debts  due  by  subjects  of  China  to  citizens 
of  the  United  States,  the  latter  may  seek  redress  in  law,  and 
on  suitable  representation  being  made  to  the  local  authorities 
through  the  Consul,  they  will  cause  due  examination  in  the 
premises  and  take  proper  steps  to  compel  satisfaction.  And 
if  citizens  of  the  United  States  be  indebted  to  subjects  of 
China,  the  latter  shall  seek  redress  by  representation  through 
the  Consul  or  by  suit  in  the  Consular  court. 

Seeking  redress  by  representation  through  the  Consul  is 
here  distinguished  from  that  by  suit  in  the  Consular  Court 


172  THE  STATUS  OF  ALIENS  IN  CHINA  [294 

and  constitutes  a  third  mode  of  settling  mixed  controversies. 
Again,  article  XXV^III,  after  determining  the  manner  in 
which  the  ot¥icers  of  one  contracting  party  may  be  ad- 
dressed by  subjects  or  citizens  of  the  other,  provides: 

And  if  controversies  arise  between  citizens  of  the  United 
States  and  subjects  of  China  which  cannot  be  amicably  settled 
otherwise,  the  same  shall  be  examined  and  decided  conform- 
ably to  justice  and  equity  by  the  public  officers  of  the  two 
nations  acting  in  conjunction. 

Of  the  three  ways  of  disposing  of  disputes  between 
Chinese  and  foreigners  in  China,  amicable  settlement 
seems  to  be  the  simplest  and  works  well  in  communities 
where  the  foreign  element  does  not  form  a  considerable 
portion  in  the  local  population.  An  American  Consul  at 
Hankow  once  stated : 

Several  cases  have  been  brought  to  me  by  Chinamen  for 
breach  of  civil  contract  by  Americans — for  non-payment  of 
wages  claimed  and  for  moneys  due  in  various  ways.  As  the 
official  of  the  defendant,  I  have,  in  every  separate  case,  been 
enabled  to  bring  matters  to  a  satisfactory  settlement  by  con- 
ference and  advice  without  the  necessity  of  any  formal  trial. ^ 

Very  often  civil  disputes  between  subjects  of  treaty 
powers  and  Chinese  are  settled  by  correspondence  between 
the  proper  consul  and  the  local  authority;  and  it  may  be 
said  that  consular  representatives  do  not  always  show  a 
readiness  to  hold  a  court  for  hearing  a  civil  suit  against  one 
of  their  nationals,  where  there  is  a  chance  of  otherwise 
terminating  it.  In  a  recent  case  of  collision,  in  which  a 
Russian  steamer  negligently  ran  into  and  sunk  a  Chinese 
junk,  thereby  causing  the  loss  of  two  lives,  the  vessel,  and 

^  Mr.  Sheppard  to  Mr.  Seward,  U.  S.  Minister  to  China,  August  26th, 
1879,  For.  Rel,  1879,  P-  224. 


295]  PROTECTION  UNDER  JURISDICTION  173 

a  cargo  valued  at  500  taels,  this  attitude  of  disinclination 
to  give  a  judicial  hearing  was  conspicuously  manifested  by 
the  Russian  Consul  at  Hankow.  Although  the  local  au- 
thorities repeatedly  urged  the  holding  of  a  court  to  try  the 
defendant  in  the  presence  of  a  Chinese  deputy,  the  consul 
declined  the  request  with  equal  persistence  and  insisted  that 
the  $900,  left  at  the  customs  house  by  the  defendant  as  se- 
curity for  paying  damages  should  be  accepted  as  ample  com- 
pensation for  the  losses  sustained  by  the  owner  of  the  junk, 
and  as  a  definitive  settlement  of  the  case,  though  nothing 
was  provided  for  the  family  of  the  victims.  The  scanty 
indemnity  was,  however,  finally  accepted  by  the  Chinese  for 
the  reason  that  "  the  case  had  been  pending  for  a  long 
time."  ' 

Who  shall  decide  mixed  cases  between  Chinese  and  for- 
eign litigants?  This  question  once  arose  out  of  the  am- 
biguous language  employed  in  the  provisions  of  nearly  all 
the  early  treaties.  The  British  treaty  of  1858,  for  in- 
stance, provides  in  the  last  part  of  article  XVI  that  "  justice 
shall  be  equitably  and  impartially  administered  on  both 
sides,"  and  in  the  next  article  the  XVII,  that  in  mixed  cases 
which  cannot  be  amicably  arranged  the  consul,  "  shall  re- 
quest the  assistance  of  the  Chinese  authorities  that  they  may 
together  examine  into  the  merits  of  the  case  and  decide 
it  equitably."  ^      On    the    interpretation    of    these   clauses 

^  New  collection  of  Treaties  and  Conventions  (Russia),  28.  This  is 
a  Chinese  collection  called  Sin-Chuan-Yah-Chang-Ta-Chien  and  con- 
tains, in  seventy-two  volumes,  nearly  all  the  important  texts,  down  to 
the  date  of  its  publication,  of  treaties,  conventions,  memorials,  notes, 
despatches  and  other  papers  related  to  China's  relations.  The  collec- 
tion is  being  kept  up-to-date  by  the  addition  of  yearly  volumes. 

*  The  two  clauses  quoted  above  are  found,  word  for  word,  respec- 
tively in  articles  xvi  and  xvii  of  the  treaty  of  July  13,  1863,  with  Den- 
mark, but  their  purport  in  the  latter  document  is  clearly  indicated  by 
the  immediately  preceding  article,  namely,  the  xv,  which,  after  providing 


174  THE  STATUS  OF  ALIENS  IN  CHINA  [296 

opinion  was  divided.  Some  claimed  that  in  a  case  of  com- 
plaint by  a  Chinese  against  a  British  subject  the  assistance 
of  the  Chinese  authorities  required,  extended  only  to  the 
examination  of  evidence  and  exercise  of  an  oversight  at 
the  trial,  the  consul  alone  having  the  power  to  form  and 
render  a  judgment;  others,  on  the  contrary  maintained  that 
in  any  mixed  case  betv^^een  Chinese  and  British  subjects, 
the  officers  of  both  nations  were  required  to  hold  a 
joint  trial  and  jointly  formulate  a  decision,  in  other  words, 
both  to  be  judges  of  the  case.  In  accord  with  the  latter 
opinion  was  the  chief  justice  of  the  British  Supreme  Court 
at  Shanghai  in  the  celebrated  case  of  collision  in  1875  ^^~ 
tw^een  the  Chinese  junk  Kin-tsai-fah  and  the  English 
steamer  Kwang-tung.  A  motion  asking  the  court  to  de- 
clare null  and  void  a  judgment  made  by  the  English  consul 
at  FuchoAv  and  the  Taotai  of  that  circuit  acting  conjointly 
Avas  refused  by  the  chief  justice  who  declared  that  the  trial 
had  been  conducted  in  accordance  with  article  XVII  of  the 
Treaty  of  Tientsin.'  This  view  of  the  article  in  question 
does  not  appear,  however,  to  have  been  sustained  by  the 
British  Government ;  on  the  contrary  in  the  Chefoo  Con- 
vention of  September  13,  1876,  concluded  by  China  and 
Great  Britain  there  was  this  declaration  : 

It  is  [further]  understood  that  so  long  as  the  laws  of  the  two 
countries  differ  from  each  other,  there  can  be  but  one  prin- 
ciple to  guide  judicial  proceedings  in  mixed  cases  in  China, 
namely,  that  the  case  is  tried  by  the  official  of  the  defendant's 

for  the  exemption  of  Danish  subjects  from  the  Chinese  jurisdiction  in 
controversies  between  themselves  and  in  those  between  them  and  sub- 
jects of  foreign  powers,  reads :  "  But  if  in  such  controversies  Chinesi, 
subjects  be  parties  involved,  the  Chinese  autliority  shall  be  assessor  in 
all  proceedings,  as  in  the  cases  provided  for  by  articles  xvi  and  xvii 
of  this  treaty." 
^  North  China  Herald,  Fel)ruary   irlli,   1875. 


297]  PROTECTION  UNDER  JURISDICTION  175 

nationality :  the  official  of  the  plaintiff's  nationality  merely  at- 
tending to  watch  the  proceedings  in  the  interests  of  justice. 
[If  the  officer  be  dissatisfied  with  the  proceedings,  it  will  be  in 
his  power  to  protest  against  them  in  detail.]  The  law  admin- 
istered will  be  the  law  of  the  nationality  of  the  offxer  trying 
the  case.  This  is  the  meaning  of  the  words,  hui  tung,  indi- 
cating combined  action  in  judicial  proceedings  in  Article  XVI 
of  the  Treaty  of  Tientsin,  and  this  is  the  course  to  be  re- 
spectively followed  by  the  officers  of  either  nationality. 

The  views  thus  stated  in  the  Chefoo  Convention  are  in 
unison  with  those  held  by  many  other  treaty  powers  as 
regards  similar  provisions  in  their  own  treaties  with  China. 
In  a  memorandum  of  October  4,  1S79,  prepared  by  Mr. 
G.  F.  Seward,  American  minister  at  Peking,  were  reviewed 
the  instructions  of  the  State  Department  at  Washington 
and  the  opinions  of  Mr.  Cushing  as  negotiator  of  the  treaty 
of  Wanghia  and  later  as  Attorney-general  of  the  United 
States,  which  all  agree  in  upholding  the  principle  that  the 
court  of  the  defendant's  nationality  alone  has  the  right  to 
adjudicate  a  mixed  case.^  The  same  was  subsequently  em- 
bodied in  article  IV  of  the  Treaty  of  November  17.  1880, 
between  China  and  the  United  States.  It  is  now  expressly 
provided  also  in  article  IX  of  the  treaty  of  1881  with  Brazil, 
article  XXI  of  the  treaty  vv'ith  Japan  and  article  XIII  of 
the  treaty  of  1889  with  Mexico.  In  respect  of  the  remain- 
ing treaty  powers,  probably  with  one  exception,-  if  they 

1  Foreign  Relations,  1880.  p.  146. 

'This  is  Russia.  So  far  as  article  ii  of  the  treaty  of  Kiildja,  July  25, 
1851,  goes,  it  appears  to  be  rather  in  accord  than  at  variance  with  the 
rule,  for  it  reads  : 

"  Les  marchands  des  deux  Empires  feront  entre  eux  le  commerce 
d'echange  et  regleront  les  prix  Hbrement  et  a  leur  gre.  II  sera  nomme, 
pour  surveiller  les  affaires  des  sujets  russes,  un  Consul  de  la  port  de 
la  Russie,  et  pour  les  affaires  des  commercants  chinois,  un  function- 
naire  de  I'administration  superieure  de  I'lli.     En  cas  de  collision  entre 


176  T^HE  STATUS  OF  ALIENS  IN  CHINA  [098 

have  not  adopted  the  principle  by  express  declarations,  they 
appear  to  observe  it  uniformly  at  least  in  practice.  It  may, 
therefore,  be  stated  as  a  rule  that  mixed  cases  between 

les  sujets  de  Tune  et  d'autre  Puissance,  chacun  de  ces  agents  decidera 
selon  toiite  justice  les  aflfaires  des  ses  nationaux." 

But  the  subsequent  treaties  with  Russia  seem  to  contain  different 
provisions.  Article  vii  of  the  Treaty  of  Tientsin,  June  1-13,  1858, 
reads : 

"  Toute  affaire  entre  les  sujets  russes  et  chinois  dans  les  ports  et 
villes  ouverts  sera  examinee  par  les  autorites  chinoises  de  concert  avec 
le  Consul  russe  ou  I'agent  qui  represente  rautorite  du  Governement 
russe  dans  I'endroit." 

Article  viii  of  the  Treaty  of  Peking,  Nov.  2-14,  i860,  is  a  little 
more  explicit.  After  authorizing  the  settlement  of  commercial  disputes 
by  arbitrators  chosen  by  the  parties  themselves,  it  continues : 

"  Les  contestations  qui  se  rapportent  point  a  des  affaires  de  com- 
merce entre  marchands  telles  que  litiges,  plaintes,  etc.,  sont  jugees  de 
consentment  mutuel  par  le  Consul  et  le  chef  local,  et  les  delinquents 
sont  punis  d'apres  les  lois  de  leur  pays." 

Article  x  of  the  same  treaty  declares  that  in  the  examination  and 
decision  of  the  affairs  on  the  frontier  the  article  just  quoted  shall  be 
conformed  to,  while  as  to  criminal  cases  involving  the  subjects  of  both 
powers,  article  vii  of  the  Treaty  of  Tientsin  is  to  be  followed. 

The  Treaty  of  St.  Petersburg,  Feb.  12-24,  1881,  summarizes  the  mode 
of  settlement  to  be  followed  in  mixed  civil  disputes  as  follows : 

"  Toutes  les  affaires  qui  surgiront  sur  territoire  chinois,  au  sujet  de 
transactions  commerciales  ou  autres,  entre  les  ressortissants  des  deux 
£tats,  seront  examinees  et  reglees  d'un  common  accord,  par  les  Consuls 
et  les  autorites  chinoises. 

"  Dans  les  litiges  en  matiere  de  commerce,  les  deux  parties  pourront 
terminer  leurs  differends  a  I'aimable,  au  moyen  d'arbitres  choisies  de 
part  et  d'autre.  Si  I'entente  ne  s'etablit  pas  par  cette  voie,  I'affaire  sera 
examinees  et  reglees  par  les  autorites  des  deux  £tats." 

In  practice  the  mixed-court  system,  as  distinguished  from  the  court 
of  the  defendant's  nation,  is  known  to  be  followed  along  the  conterm- 
inous frontiers  of  Russia  and  China.  There  cases  of  controversy  be- 
tween Russian  and  Chinese  merchants  accumulate  with  exceeding 
rapidity,  and  to  dispose  of  them  once  for  all  a  mixed  court,  presided 
over  by  a  representative  of  each  nation  specially  appointed  for  the 
purpose,  is  held  once  every  three  years  in  Eli  and  Tahcheng  (Tarba- 
gatai).  The  law  administered  is  not  that  of  either  nation,  but  the 
customs  of   the  locality  in  which   a  given  case  originated.     Whatever 


299]  PROTECTION  UNDER  JURISDICTION  lyy 

Chinese  and  foreign  subjects  in  China  are  heard  and  deter- 
mined by  the  authorities  of  the  defendant's  nation,  an  officer 
of  the  plaintiff's  nation  being  entitled  to  be  present  to  watch 
the  proceedings,  and  examine  and  cross-examine  witnesses, 
and,  if  dissatisfied  with  the  judgment  rendered,  protest 
against  it  in  detail. 

The  assessor  or  assessors  to  be  sent  by  China  to  attend 
the  trial  of  a  mixed  case  in  which  the  plaintiff  is  a  Chinese 
must  be  Chinese  authorities  as  designated  in  the  Russian, 
French  and  English  treaties  concluded  in  1858.  Although 
article  XXVIII  of  the  American  treaty  of  the  same  year 
employs  the  term  "  public  officers  of  the  two  nations  "  in- 
stead, the  United  States  Government  has  interpreted  it  to 
mean  Chinese  authorities,  where  assessors  to  represent 
China  are  to  be  sent  to  an  American  court  trying  a  mixed 
case,  and  the  Chinese  Government  appears  to  have  ac- 
quiesced in  the  interpretation.  This  question  once  arose 
directly  in  a  collision  case  at  Tientsin  in  1875,  in  which  a 
Chinese  brought  a  suit  in  the  United  States  consular  court 
at  that  port  to  recover  damages  against  an  American 
steamer.  The  customs  taotai  deputed,  as  assessors  to  rep- 
resent him,  two  Chinese  officials  and  Mr.  Twinem,  a  British 
subject  serving  China  as  customs  commissioner.  Mr. 
Sheppard,  the  consul,  while  admitting  the  Chinese  assessors, 
refused  to  receive  Mr.  Twinem  in  that  capacity.^  On  re- 
ceiving a  report  of  the  case,  the  Department  of  State  at 

decision  the  mixed  tribunal  renders  is  final.  This  modus  vrjcndi  has 
I)roved  satisfactory  as  well  as  sticcessful.  In  1903  over  1,700  cases  were 
definitely  adjudicated  by  this  triennial  mixed  court  sitting  in  Eli,  within 
the  short  period  of  one  month.  Since  1905  the  same  system  has  been 
extended  to  Kashgar.  where,  prior  to  that  year,  mixed  cases  had  been 
accumulating  for  nearly  two  decades. — Memorial  to  the  Emperor  by 
Ma,  Military  Governor  of  Eli,  1904,  3  new  collections  (Russia),  34. 
*  Mr.  Avery  to  Mr.  Fish,  June  23,  1875,  For.  Rel.,  1875,  part  i,  p.  347. 


1^8  THE  STATUS  OF  ALIENS  IN  CHINA  [300 

Washington  approved  the  action  taken  by  the  consul  at 
Tientsin,  giving  the  following  reasons : 

It  is  quite  clear  that  these  provisions,  [in  the  four  principal 
treaties  concluded  between  China  and  foreign  powers  in 
1858],  among  other  things,  were  intended  to  secure  the  at- 
tendance of  a  Chinese  official  of  position  and  influence  on  the 
occasion  of  a  trial  of  this  nature  who  might  not  only  watch 
over  the  interests  of  his  own  countrymen,  and  assist  in  a 
proper  manner  therein,  but  whose  standing,  intelligence  and 
rank  would  serve  as  an  assurance  to  his  countrymen  of  the 
justice  of  the  judgment  which  might  be  rendered. 

The  precise  official  designated  was  not  named,  because  with- 
in the  limits  I  have  referred  to  it  might  well  be  left  to  the 
Chinese  authorities  to  choose  such  person  as  might  from 
time  to  time  be  best  fitted  to  attain  the  desired  end. 

A  foreigner,  however,  and  a  person  of  inferior  position, 
although  attached  to  a  branch  of  the  Chinese  service,  such 
as  Mr.  Twinem,  complies  with  none  of  the  requisites,  is  in 
no  respect  a  public  officer  of  the  Chinese  nation  within  the 
meaning  of  the  treaty,  and  his  presence  could  not  secure  the 
intended  purpose. 

Mr.  Seward's  refusal  to  allow  Mr.  Twinem  to  sit  was 
proper  and  his  course  on  the  question  seems  to  have  been 
dignified  and  judicious.^ 

§  3.  Cases  hctivccn  Aliens 

Thus  far  in  this  section  the  question  of  extraterritorial 
jurisdiction  has  been  treated  only  as  relates  to  matters, 
civil  and  criminal,  in  which  both  Chinese  and  foreign 
subjects  are  interested,  particularly  to  those  mixed  cases  in 
which  the  former  are  plaintiffs  and  the  latter  defendants; 
it  being  preferable  to  discuss  more  thoroughly  in  another 

'  Mr.  Cadvvalader  to  Mr.  Avery,  Aug.  i6th,  1876,  For.  Rcl.,  1875,  part 
I,  p.  400. 


30l]  PROTECTION  UNDER  JURISDICTION  lyg 

section  those  cases  which  are  brought  by  a  subject  of  a 
treaty-power  against  a  Chinese. 

With  regard  to  controversies  in  China  in  which  Chinese 
subjects  are  not  involved,  the  principle  which  China  ob- 
serves is  that  of  non-interference.  Questions  of  rights, 
whether  personal  or  of  property,  arising  in  China  between 
subjects  of  the  same  treaty  power  are  subject  to  the  juris- 
diction and  regulated  by  the  authorities  of  their  own  gov- 
ernment. Those  occurring  in  Chinese  territory  between 
the  subjects  of  two  different  powers  are  disposed  of  in  ac- 
cordance with  the  provisions  of  treaties  existing  between 
them.^  In  such  cases  the  general  practice  is  that  they  are 
arranged  officially  by  the  consuls  of  both  parties  without 
resort  to  litigation;  but  where  amicable  settlement  is  im- 
possible, the  principle  of  jurisdiction  followed  is  the  same 
as  in  those  between  China  and  a  foreign  power,  namely, 
that  the  plaintiff  follows  the  defendant  into  the  court  of 
the  latter's  nation. 

§  4.  Extraterritorial  Courts  in  China 

The  ordinary  machinery  provided  by  each  treaty-power 
for  the  exercise  of  jurisdiction  over  its  own  subjects  in 
China  consists  of  consular  Courts,  each  presided  over  by 
a  consul  who,  by  virtue  of  the  powers  conferred  on  him  by 
the  laws  of  his  nation  and  subject  to  the  limitations  therein 
provided,  hears  and  determines  cases  between  his  nationals 
and  those  in  which  the  latter  are  defendants.     Some  powers 

*  The  earliest  provisions  exempting  foreigners  in  China  from  the 
territorial  jurisdiction  as  regards  controversies  arising  between  them 
are  article  xxv  of  the  American  treaty  of  1844,  substantially  reproduced 
in  article  xxvii  of  the  treaty  of  1858,  article  xxxix  of  the  treaty  of 
1847  with  Sweden  and  Norway,  and  article  xv  of  the  British  treaty  of 
1858.  The  last-mentioned  article  provides  for  exemption  only  in  cases 
between  British  subjects,  no  reference  being  made  to  cases  between 
them  and  other  foreign  subjects. 


I  So  THE  STATUS  OF  ALIENS  IN  CHINA  [302 

authorize  their  diplomatic  representatives  at  Peking,  also, 
to  hold  courts  and  sit  in  judgment  on  their  respective  sub- 
jects, the  jurisdiction  thus  exercised  being  either  original 
or  appellate.  Appeals  from  the  consular  courts  of  some 
countries  run  also  to  their  adjacent  colonial  or  home  courts. 
Thus,  for  instance,  appeals  from  the  judgments  of  French 
consular  tribunals  in  China  are,  in  pursuance  of  laws  which 
still  remain  in  force,  brought  to  the  Court  of  Appeals  of 
Saigon.^  The  consul's  and  minister's  courts,  however,  do 
not  take  jurisdiction  in  all  cases  occurring  in  China  in 
which  their  nationals  are  defendants;  where  grave  crimes 
are  committed  on  Chinese  soil  by  the  subjects  of  certain 
treaty  powers,  the  offenders  cannot  be  tried  and  published 
in  their  consular  courts  or  the  court  of  their  minister;  they 
are  required,  after  a  summary  inquiry,  to  be  sent  to  their 
own  country  for  such  purposes.  This  procedure  applies 
particularly  to  Russian  and  Spanish  culprits  in  China.^ 

1  De  Clercq  and  De  Vallet,  Guide  pratique  des  Consulates  (2  vol- 
umes, Paris,  1898),  2,  p.  600.  Prior  to  the  issuance  of  the  Order  in 
Council  of  March  9,  1865,  appeals  from  the  judgments  of  British  con- 
sular courts  in  China  were  brought  to  the  Supreme  Court  of  Hong 
Kong. — J.  W.  Norton-Kyshe,  History  of  the  Law  and  Courts  of  Hong 
Kong,  including  consular  jurisdiction  in  China  and  Japan  (2  vols., 
London,  1858),  2,  pp.  76-80.  Prior  to  the  enactment  of  the  act  of 
March  3,  1891  (26  Stat,  at  L.  826,  sec.  4)  appeal  from  a  judgment  of 
an  American  consular  court  or  the  court  of  the  American  minister  at 
Peking,  in  a  matter  which,  exclusive  of  costs,  exceeded  $2,500,  was 
allowed  to  the  circuit  court  for  the  district  of  California;  but  tlie  act 
creating  the  circuit  courts  of  appeal  took  away  the  appellate  jurisdic- 
tion from  "  circuit  courts  "  and  incidentally  left  the  litigants  in  con- 
sular courts  in  China  without  a  higher  tribunal  to  appeal  to  in  more 
important  cases. — F.  E.  Hinckley,  American  Consular  Jurisdiction  in  the 
Orient,  Washington,  1506,  p.  49. 

"  Russian  Treaty  of  Nov.  2-14,  i860,  article  viii ;  Spanish  Treaty  of 
Oct.  10,  1864,  art.  xiii.  A  clause  in  the  latter  article  pr9vides  for  the 
sending  of  Spanish  offenders  in  China  to  Manila  for  trial  and  punish- 
ment, but  of  course  it  has  not  applied  since  the  cession  of  the  Philip- 
pines to  the  United  States  in  1898;  no  new  provision,  however,  is 
known  to  have  been  made  in  place  of  it. 


303]  PROTECTION  UNDER  JURISDICTION  181 

There  are,  however,  in  China  at  present  two  foreign 
courts  which  are  of  a  different  nature  and  constitution  from 
those  of  the  consular  courts  and  the  courts  held  severally 
by  the  foreign  ministers  at  Peking.  Under  the  Order  in 
Council  of  October  24,  1904,^  there  has  been  established  in 
China  a  court  officially  entitled  "  His  Britannic  Majesty's 
Supreme  Court  for  China  and  Corea."  It  is  presided  over 
by  a  judge  and  a  number  of  assistant  judges,  respectively  ap- 
pointed by  warrant  under  the  royal  sign  manual.  Any  two 
judges  sitting  together  constitute  "  the  full  court." 

The  new  supreme  court,  like  its  predecessor,  has  in  all 
matters,  civil  and  criminal,  an  exclusive  original  jurisdic- 
tion for  and  within  the  district  of  the  consulate  of  Shanghai, 
but,  in  other  consular  districts,  it  exercises  an  original  juris- 
diction concurrent  with  the  jurisdiction  of  the  "  Provincial 
(British  Consular)  Courts."  "  It  is  thus  evident  that  the 
British  consul  or  consular-general  at  Shanghai  is,  under  the 
new  order  in  council,  relieved  of  judicial  functions  which 
he  had  to  perform  theretofore,  and  the  performance  of 
which  is  still  required  of  his  colleagues  in  other  parts  of 
China.  In  this  respect  the  British  consulate  at  Shanghai 
forms  a  class  of  its  own  as  compared  to  all  the  other 
consulates  in  the  Chinese  Empire.     Further,  the  British 

'  This  order  in  council  is  very  comprehensive.  It  is  a  veritable  code. 
It  repeals  ten  previous  orders  in  council  relative  to  China,  Japan  and 
Corea,- including  that  of  March  9,  1865,  which  established  the  Supreme 
Court  of  Civil  and  Criminal  Judicature  for  China  and  Japan ;  but  it 
consolidates  much  of  their  substance  with  its  own  systematic  whole.  It 
contains  nine  parts,  namely:  (i)  preliminary  and  general;  (2)  consti- 
tution and  powers  of  courts  (Supreme  and  provincial);  (3)  criminal; 
(4)  civil  matters;  (5)  procedure,  criminal  and  civil;  (6)  mortgages 
and  bills  of  sale;  (7)  foreign  subjects  and  tribunals;  (8)  regulations 
miscellaneous.  The  complete  text  of  the  China  and  Corea  Order  in 
Council,  1504,  as  it  is  officially  cited,  is  found  in  Hcrtslet's  China 
Treaties,  ii,  pp.  834,  889. 

^  China  and  Corea,  Order  in  Council,  1904,  articles  21  and  23. 


1 82  THE  STATUS  OF  ALIENS  IN  CHINA  [304 

Supreme  Court  may  of  its  own  motion  order  a  case  in  a 
provincial  court  to  be  transferred  to  and  tried  by,  itself, 
and  such  removal  may  be  effected  upon  the  report  of  a 
provincial  court  or  upon  the  application  of  any  party  to 
the  case.^  Appeals  in  criminal  matters  are  allowed  to  the 
Supreme  Court  from  any  British  court  in  China,  but  no  ap- 
peal from  a  decision  of  the  Supreme  Court  can  be  brought 
to  His  Majesty,  the  King,  in  Council  except  by  special  leave 
of  His  Majesty  in  Council."  In  civil  matters  any  party  in 
an  action  involving  the  amount  or  value  of  $25  or  upwards, 
in  a  provincial  court,  has  the  right  to  appeal  to  the  supreme 
court ;  and  when  an  action  involves  the  amount  or  value  of 
$5,000  or  upwards,  either  party  may  appeal  from  the  su- 
preme court  to  His  Majesty  in  Council.^ 

The  other  notable  exception  to  the  uniform  judicial  ma- 
chinery maintained  by  treaty  powers  in  China  is  "  The 
United  States  Court  for  China "  created  by  the  act  of 
Congress,  June  30,  1906.^  The  court  has  a  judge,  a  dis- 
trict attorney,  a  marshall,  all  of  whom  are  appointed  by 
the  President  with  the  advice  and  consent  of  the  Senate. 

It  is  required  to  hold  its  sessions  at  Shanghai,  as  its  seat, 
but  also  one  session,  at  least,  in  Canton,  Tientsin,  and 
Hankow.  It  has  exclusive  jurisdiction  in  all  cases  and 
judicial  proceedings  whereof  jurisdiction  might,  at  the  date 
of  the  act,  be  exercised  by  United  States  Consuls  and  min- 
isters by  law  and  by  virtue  of  treaties  between  China  and 
the  United  States,  except  in  civil  cases  where  the  property 
involved  in  the  controversy  does  not  exceed  five  hundred 
dollars  in  United   States  currency,  and  in  criminal  cases 

1  Op.  cit.,  art.  25. 

» Ibid.,  arts.  85,  86,  87. 

•/fcirf.,  arts.  113,  114,  115,  116,  117. 

*34  U.  S.  Statute5  at  Large  814,  c.  3934. 


305]  PROTECTION  UNDER  JURISDICTION  183 

where  the  punishment  for  the  offense  charged  cannot  ex- 
ceed by  law  one  hundred  dollars'  fine  or  sixty  days'  im- 
prisonment, or  both.  From  all  judgments  of  the  consular 
court,  either  party  has  the  right  of  appeal  to  the  United 
States  Court  for  China/  Appeals  from  judgments  and 
decrees  of  this  court  lie  to  the  United  States  circuit  court  of 
appeals  of  the  ninth  judicial  circuit  and  thence  to  the  Su- 
preme Court  of  the  United  States. - 

The  number  of  foreign  courts  in  China  is  necessarily 
large,  each  treaty  power  maintaining  its  owm  tribunals. 
In  a  port  where  thriving  commerce  has  built  up  a  foreign 
community  of  considerable  size  and  numerous  nationalities, 
there  will  generally  be  as  many  kinds  of  consular  courts  as 
there  are  states  maintaining  treaty  relations  with  China. 
When  it  is  remembered  that,  besides  consular  courts,  there 
exist  the  Chinese  courts,  which  will  be  studied  in  a  later 
section,  and  the  special  foreign  courts,  which  have  just 
been  described,  the  complexity  of  the  situation  as  regards 
the  administration  of  justice  among  Chinese  and  foreign 
subjects  in  China  becomes  easily  comprehensible.  As  early 
as  1879,  complaint  was  made  of  the  clumsy  judicial  struc- 
ture in  Shanghai,  then  far  less  important,  as  regards  the 
value  of  its  foreign  interests  and  the  number  of  treaty 
powers  represented  there,  than  it  is  now.  "  The  multi- 
plicity of  courts  established  in  Shanghai,"  wrote  the  United 
States  Consul,  "  may  be  fairly  said  to  constitute  the  most 
cumbersome  system  of  judicature  known  to  exist  in  any 
considerable  commercial  center  in  the  world."  * 

'  Act  of  June  30,  1906. 
'  Ibid.,  s.  3. 

'  Mr.    Bailey   to   Mr.    Seward,    Sept.    isth,    1879.     Foreign   Relations, 
1879,  p.  229. 


184  THE  STATUS  OF  ALIENS  IN  CHINA  [306 

J5  5.  The  Lazv  administered  to  Aliens 

In  cases  where  a  subject  of  a  treaty  power  commits  an 
offence  in  China,  against  whomsoever  it  may  be,  a  Chinese, 
a  foreigner  of  another  power,  or  one  of  his  own  nationals, 
and  against  whatever  it  may  be,  treaties,  laws,  regulations 
or  local  customs,  the  law  administered,  as  regards  the  mode 
of  trial  and  the  means  of  punishment,  is  invariably  that  of 
the  offender's  nation.  In  other  words,  the  law  applicable 
to  a  given  crime  committed  in  China,  varies  with  the  na- 
tionality of  the  culprit.  For  instance,  a  Frenchman  guilty 
of  an  offence  in  any  part  of  the  Chinese  Empire,  is  subject 
only  to  the  penalties  prescribed  by  the  laws  of  France  for 
such  offence;  an  American,  to  those  of  the  United  States; 
a  Mexican  to  those  of  Mexico.  What  the  criminal  la\v  of 
a  given  nation  is,  or  consists  of,  as  regards  crimes  com- 
mitted by  its  subjects  in  China,  depends,  of  course,  upon 
the  law-making  power  of  that  nation. 

In  the  case  of  British  subjects  committing  crrminal  acts 
in  the  dominions  of  the  Chinese  Emperor,  it  is  provided, 
as  a  general  principle,  in  the  China  and  Corea  Order  in 
Council,  1904,  that  subject  to  certain  other  provisions  in 
the  same  order,  British  criminal  jurisdiction  in  China 
"  shall,  as  far  as  circumstances  admit,  be  exercised  on  the 
principles  of,  and  in  conformity  with,  English  law  for  the 
time  being,  and  with  the  powers  vested  in  the  courts  of 
Justice  and  Justices  of  the  Peace  in  England,  according  to 
their  respective  jurisdiction  and  authority."  ^  Certain  acts 
of  Parliament  are  declared  to  apply  and  to  be  administered 
in  China,  and  in  addition  to  these  laws  and  the  orders  in 
council  relative  to  China,  the  British  minister  at  Peking 
is  also  empowered  to  make  regulations  which,  when  ap- 
proved and  published  in  the  proper  manner,  have  effect  as 

'  Art.  35  (2)   Hertslet's  China  Treaties,  ii,  p.  849. 


307]  PROTECTION  UNDER  JURISDICTION  185 

if  contained  in  an  order  in  council,  and  are  enforceable  by 
forfeiture,  fine,  and  imprisonment.  Such  regulations  may- 
be made  for  any  of  the  specified  purposes,  one  of  which  is 
to  secure  ''  the  observance  of  any  treaty  for  the  time  being 
in  force  relating  to  any  place  or  of  any  native  or  local 
law,  or  custom,  whether  relating  to  trade,  commerce,  re- 
venue, or  any  other  matter.^ 

Similarly,  the  statutes  of  the  United  States  provide  that 
the  laws  of  the  United  States,  where  necessary  and  suitable, 
shall  be  extended  over  all  citizens  of  the  United  States  in 
China  and  four  other  countries  therein  mentioned,  and  over 
all  others  to  the  extent  that  the  terms  of  the  treaties,  re- 
spectively, justify  or  require;  l:)ut  that  in  all  cases  where 
such  laws  are  inappropriate  or  inadequate,  the  common 
law  and  the  law  of  equity  and  admiralty  shall  be  applied 
and  that, 

if  neither  the  common  law,  nor  the  law  of  equity  or  admiralty, 
nor  the  statutes  of  the  United  States  furnish  appropriate  and 
sufficient  remedies,  the  minister  in  those  countries,  respec- 
tively, shall,  by  decrees  and  regulations  which  shall  have  the 
force  of  law,  supply  such  defects  and  deficiencies." 

The  act  of  June  30,  1906,  creating  a  United  States  court, 
confirms  these  provisions  except,  as  regards  China,  in  one 
respect.  The  said  act  omits  all  mention  as  to  the  power  of 
the  American  minister  in  China  to  make  regulations  for  the 
purpose  of  supplying  local  needs  and  its  language  seems  to 
imply  that  such  power  may  not  again  be  exercised.^ 

1  Art  ISS  (b),  ibid.,  p.  884. 
U.  S.  Revised  Statutes,  s.  4086. 

'  "  Sec.  4.  The  jurisdiction  of  said  United  States  Court,  both  or'ginal 
and  on  appeal,  in  civil  and  criminal  matters,  and  also  the  jurisdiction 
of  the  Consular  Courts  in  China,  shall  in  all  cases  be  exercised  in  con- 
formity with  said  treaties  and  the  laws  of  the  United  States  now  in 
force  in  reference  to  the  American  Consular  Courts,  and  all  judgments 


1 8b  Ti-i^  STATUS  OF  ALIENS  IN  CHINA  [308 

In  matters  of  a  civil  nature  arising  in  China  between  a 
Chinese  and  a  foreigner,  the  early  treaties  provide  that  they 
shall  be  examined  and  decided  by  the  authorities  of  the  two 
nations  acting  in  conjunction,  "  conformably  to  justice  and 
equity."  ^  These  terms,  of  course,  are  not  helpful  in  de- 
termining what  the  law  applicable  to  a  given  controversy  is, 
since  they  are  obviously  used  in  their  generic,  not  technical 
sense.  The  Chef 00  agreement  of  1876  declares  that  "  the 
law  administered  will  be  the  law  of  the  nationality  of  the 
officer  trying  the  case."  -  While  doubt  is  sometimes  enter- 
tained as  to  whether  this  declaration  was  not  intended  to 
apply  solely  to  criminal  cases,  since  it  was  avowedly  made 
to  explain  the  meaning  of  article  XVI  of  the  British  treaty 
of  1858,  which  makes  provision  for  criminal  matters  only, 
the  American  treaty  of  1880.  in  article  IV,  should  remove 
all  uncertainty  on  the  question,  inasmuch  as  the  same  clause 
found  therein  is  expressly  declared  to  apply  to  "  contro- 
versies." Furthermore,  from  the  fact,  already  pointed  out 
in  the  preceding  pages,  that  the  officer  trying  a  mixed  suit 
must  be  an  officer  of  the  defendant's  nation,  it  must  follow 
that  the  law  to  be  applied  in  such  a  case,  according  to  the 
Chefoo  agreement,  is  necessarily  the  law  of  the  defendant's 
nation.  This  rule,  simple  as  it  may  seem,  would  prove  per- 
plexing enough,  even  if  China  and  every  treaty  power  had 

and  decision  of  said  Consular  Courts,  and  all  decisions,  judgments  and 
decrees  of  said  United  States  Court  shall  be  enforced  in  accordance 
with  said  treaties  and  laws.  But,  in  all  such  cases  when  such  laws  are 
deficient  in  the  provisions  necessary  to  give  jurisdiction  or  to  furnish 
suitable  remedies,  the  common  law  and  the  law  as  established  by  the 
decisions  of  the  Courts  of  the  United  States  shall  be  applied  by  such 
court  in  its  decisions  and  shall  govern  the  same,  subject  to  the  terms 
of  any  treaties  between  the  United  States  and  China." — 34  U.  S.  Stat- 
utes at  Large,  814,  c.  3934. 

'  Articles  xxiv  of  the  Treaty  of  1844  and  xxviii  of  that  of  1858,  both 
with  the  United  States. 

*  Section  II  (iii). 


309]  PROTECTION  UNDER  JURISDICTION  187 

provided  a  complete  code  of  laws  covering  every  pos- 
sible subject  of  controversy  and  every  probable  combination 
of  facts ;  for  even  then  difficult  questions  would  arise  as  to 
which  party  to  the  suit  is  the  real  defendant,  in  order  to 
determine  who  shall  try  it  and  what  law  shall  be  applied. 
But  the  laws  in  force  dealing  with  the  countless  aspects 
of  the  civil  relations  between  Chinese  and  foreigners,  and 
also  between  the  subjects  of  the  different  powers  in  China, 
seem  far  from  being  sufficiently  comprehensive  to  fulfil  all 
purposes.  In  one  or  two  cases,  the  treaties  provide  the  law 
for  a  specific  subject. 

Thus,  in  regard  to  the  rights  and  obligations  of  Chinese 
shareholders  in  British  joint  stock  companies  and  vice  versa, 
article  IV  of  the  British  treaty  of  September  5,  1908,  de- 
clares that  both  the  Chinese  and  British  courts  shall  re- 
spectively enforce  compliance,  when  a  suit  is  brought  for 
such  purpose,  with  the  charter  of  incorporation  or  mem- 
orandum and  articles  of  association  of  such  companies, 
which  the  shareholders,  on  becoming  such,  whether  Chinese 
or  British,  must  be  held  to  have  fully  accepted;  and  for- 
eign subjects  in  China  accepting  and  operating  a  mining 
concession  from  the  Chinese  Government  under  the  mining 
rules,  are  held  to  have  consented  to  observe  such  rules,  and 
the  courts  of  their  nation  will  enforce  them  in  respect  of 
questions  arising  out  of  the  concession.^  But  in  a  great 
number  of  other  matters,  constituting  causes  of  action  be- 
tween the  subjects  of  different  powers,  the  courts  and 
counsel  on  both  sides  must  be  under  difficulties  in  ascertain- 
ing what  laws  are  applicable  to  them.  For  instance,  the 
question  of  what  law  governs  real  property  owned  by  for- 
eign subjects  in  China,  whether  the  Chinese  law  which  will 
be  the  lex  loci  rei  sitae,  or  that  of  the  owner's  nation,  has 

'British  Treaty  of  Sept.  stli,   1902,  art.  ix;  United  States  Treaty  of 
Oct.  8,  1903,  art.  vii. 


l88  THE  STATUS  OF  ALIENS  IN  CHINA  [310 

caused  much  embarrassment  among  the  legal  practitioners 
in  the  country.     One  writer  observes : 

The  rights  and  property  of  a  British  subject  in  China  can 
be  assailed  only  in  His  Britannic  Majesty's  Court  where  the 
law  of  England  is  administered.  But  does  the  fact  that  a 
British  subject  owns  land  in  China  of  itself  invest  that  land 
with  all  the  characteristics  of  land  in  England?  It  has  been 
tacitly  assumed  that  it  does,  and  lawyers  employ  the  English 
form  of  conveyance  in  transferring  land.  But  the  assumption 
is  contrary  to  the  theory  of  English  law,  which  is  that  the  law 
which  governs  the  land  is  the  lex  loci  rei  sitae,  that  is,  in  this 
case,  the  law  of  China,  and  is  completely  at  variance  with  a 
recent  decision  of  the  Privy  Council  on  an  appeal  from  the 
court  of  Zanzibar,  where  a  similar  system  of  extraterritoriality 
prevails.  In  that  case  it  was  held  that  the  law  which  the 
British  court  administers  as  to  land  in  Zanzibar  is  the  lex 
loci,  and  that  the  British  court  must  take  judicial  cognizance 
of  that  law.  If  this  decision  applies  to  China,  (and  there  is 
no  reason  why  it  should  not,)  then  the  law  under  which  land 
is  held  in  China  by  British  subjects  is  Chinese  law ;  and  what 
Chinese  law  is,  beyond  an  intricate  code  of  punishments  and 
penalties,  few  would  dare  to  say.  The  fact  is  that  the  lawyers 
in  Shanghai  and  other  treaty  ports  in  China,  do  not  really 
know  what  the  law  applicable  to  land  held  by  British  subjects 
and  other  foreigners,  really  is.^ 

§  6.  Application  of  their  ozun  law  advantageous  to 
Aliens 

With  reference  to  the  question  of  the  law  applied  in 
criminal  and  civil  matters  occurring  in  her  dominions, 
China,  as  has  already  been  indicated,  is  like  mediaeval 
Europe.  Foreigners  going  there  are  by  treaty  entitled  to 
bring  with  them  their  personal  laws,  that  is,  the  laws  of 

'  A.  M.  Latter,  barrister-at-law  at  Shanghai.  "  The  Government  of 
Foreigners  in  China,"  19  Law  Quarterly  Rev.   (1903),  316-325. 


31 1 ]  PROTECTION  UNDER  JURISDICTION  jgg 

their  own  country;  and  generally  speaking,  they  are  gov- 
erned by  such  laws.  In  cases  arising  between  two  subjects 
of  the  same  treaty  power  there  is  no  question  as  to  the  law 
to  be  applied  to  it ;  it  is  always  the  law  of  their  own  nation. 
In  a  case  between  the  subjects  of  two  different  powers  in- 
cluding China,  the  personal  law  of  the  defendant,  who  is 
generally  supposed,  at  least  in  theory,  to  need  more  pro- 
tection than  the  other  party  in  the  case,  prevails.  Now 
what  advantages  do  the  foreigners  derive  from  the  appli- 
cation to  them  while  in  China  of  their  personal  law?  It 
may  perhaps  be  difficult  to  show  the  relative  merits  of  the 
different  systems  of  law  of  the  treaty  powers  in  respect  of 
the  benefit  which  the  application  of  one  system  confers 
upon  the  defendant  in  a  given  case  over  that  of  another; 
but,  as  regards  the  laws  of  the  treaty  powers  on  one  hand, 
and  the  Chinese  law,  as  it  stands  to-day,  on  the  other,  there 
can  scarcely  be  any  doubt  that  the  difference  between  the 
two  resolves  in  favor  of  those  who  are  exempt  from  sub- 
mission to  the  latter  system  of  jurisprudence.  An  English 
lawyer  in  Shanghai  observes  : 

There  is  no  doubt  that  the  extraterritorial  system  in  China 
places  the  foreigner  in  a  far  better  position  than  he  would  be 
in,  had  the  treaties  never  been  made,  and  the  complaints  of 
foreigners  living  in  Japan,  now  that  the  treaties  have  expired, 
illustrate  the  truth  of  this  statement.^ 

Another  authority,  a  Chinese  jurist  learned  in  the  West- 
ern jurisprudence  as  well  as  in  that  of  his  own  country, 
expounds  the  question  under  consideration  with  much 
lucidity.     He  says : 

The  dissimilarity  and  inequality  in  the  punishments  inflicted 
on  offenders  in  mixed  cases  will  at  once  be  apparent  if  we 
take  for  an  example  the  case  of  homicide.     Supposing  a  for- 

1  Latter,  op.  cit. 


190  THE  STATUS  OF  ALIENS  IN  CHINA  [312 

eigner  is  killed  in  an  alTray  by  a  Chinese,  the  latter  will  have 
to  suffer  death  in  accordance  with  Section  290  of  the  Penal 
Code,  which  provides  that  "  all  persons  guilty  of  killing  in  an 
aft'ray,  that  is  to  say,  striking  in  a  quarrel  or  affray,  so  as  to 
kill,  though  without  any  express  or  implied  design  to  kill, 
shall,  whether  the  blow  was  struck  with  the  hand  or  the 
foot,  with  a  metal  weapon,  or  with  an  instrument  of  any  kind, 
suffer  death  by  being  strangled  after  the  usual  period  of  con- 
finement." But  if  the  case  is  reversed,  that  is  to  say,  if  a 
Chinese  is  killed  by  an  European  or  an  American,  the  accused 
will  not  in  any  case  be  sentenced  to  death.  In  all  probability 
he  will  be  sentenced  to  a  longer  or  shorter  term  of  imprison- 
ment, according  to  circumstances,  or  perhaps  let  off  with 
a  fine.  If  the  Chinaman  is  killed  in  play  or  purely  by  acci- 
dent, no  American  or  European  court  will  convict  the  killer. 
But  it  is  a  very  different  matter  with  a  Chinaman,  if  he  should 
be  the  killer,  in  such  a  case.  The  consequences  are  serious 
as  he  is  surely  to  be  convicted  under  Section  292  of  the  Code, 
which  reads :  "All  persons  playing  with  the  fists,  with  a  stick, 
or  with  any  weapon  or  other  means  whatsoever,  which  can  be 
made  the  instrument  of  killing,  and  thus  killing  or  wounding 
some  individual,  shall  suft'er  the  punishment  provided  by  the 
law  in  any  ordinary  case  of  killing  or  wounding  in  an  affray ; 
otherwise  any  person,  who,  being  engaged  in  an  affray  by  mis- 
take, kills  or  wounds  a  bystander,  shall  be  punished  in  the 
same  manner,  that  is,  shall  suffer  death  by  being  strangled." 

Now  let  me  take  a  civil  case.  Suppose  a  foreigner  is  sued 
by  a  Chinese  merchant  for  the  recovery  of  a  debt  of  $10,000. 
The  case  naturally  comes  up  before  the  consul  of  the  country 
to  which  the  foreigner  belongs.  The  Chinese  merchant  has 
to  produce  strong  evidence  in  support  of  his  claim  in  order  to 
obtain  a  judgment  in  his  favor.  Even  then  he  is  not  sure 
that  he  can  recover  his  money.  If  the  foreigner  has  any 
goods,  or  any  other  kind  of  property  that  can  be  seized,  the 
Chinese  merchant  may  perhaps  be  able  to  get  possession  of 
them  and  have  them  sold  to  satisfy  his  claim.  But  it  is  more 
likely  that  there  is  nothing  he  can  levy  on.     In  that  case  he 


313]  PROTECTION  UNDER  JURISDICTION  k^i 

has  no  further  remedy.  According  to  the  law  of  some  na- 
tions, a  judgment-debtor  cannot  be  put  into  jail.  Furthermore, 
a  foreigner  who  owes  other  people  money  and  is  unable  to 
pay  his  debts  in  full,  can  either  go  into  bankruptcy  under  the 
insolvent  law,  or  make  a  general  assignment  for  the  benefit 
of  his  creditors.  If  he  resorts  to  either  course  in  a  straight- 
forward manner  without  fraud,  his  whole  indebtedness  is 
wiped  out,  no  matter  how  much  or  how  little  his  creditors  may 
get  back  in  the  settlement ;  henceforth,  he  can  engage  in  busi- 
ness again  without  any  old  debts  hanging  over  him. 

Now  let  us  see  what  a  Chinese  can  do,  or  rather  cannot 
do,  when  he  is  unfortunate  enough  to  run  heavily  in  debt. 
All  that  he  can  do  is  to  call  a  meeting  of  his  creditors  and 
offer  to  settle  with  them  on  an  equitable  basis.  But  if  any 
of  his  creditors  refuse  to  accept  his  terms  there  is  no  Chinese 
court  or  insolvent  law  that  can  give  him  relief.  If  a  judg- 
ment is  obtained  against  him  by  a  foreigner  in  a  suit  brought 
for  the  purpose,  his  property  will  be  seized.  If  that  does  not 
realize  enough  to  pay  his  debt  in  full,  the  property  of  his  wife 
and  children  and  frequently  of  his  parents  and  brothers  also, 
is  distrained.  In  the  meantime  he  is  arrested  and  put  under 
confinement  until  the  full  amount  he  owes  the  foreigner  is 
satisfied.  Let  me  give  you  a  case  in  point.  I  have  in  mind  a 
respectable  Chinese  merchant  I  knew,  who  on  account  of  his 
reckless  but  perfectly  legitimate  speculation  in  business,  had 
the  misfortune  of  becoming  insolvent.  Among  his  creditors 
was  a  foreigner,  who,  through  the  consular  representative  of 
his  country,  brought  a  suit  against  him.  He  was  summoned 
to  appear  before  the  proper  Chinese  magistrate  and  as  the 
amount  of  the  claim  was  not  disputed,  he  was  at  once  con- 
fined in  the  yamen.  In  the  meantime  all  his  property  was 
seized  and  sold,  but  it  did  not  realize  enough  to  pay  the  full 
amount  of  the  judgment  debt.  I  learned  subsequently  that 
he  was  kept  in  jail  for  several  years  and  could  not  regain 
his  liberty  until  his  relatives  came  forward  and  helped  him  to 
pay  all  that  he  owed  to  the  foreigner. 

It  may  be  urged,  on  the  other  hand,  that,  in  the  case  just 


1 92  THE  STATUS  OF  ALIENS  IN  CHINA  [314 

cited,  the  parties  were  dealt  with  according  to  the  laws  of 
their  respective  countries,  and  that,  if  the  parties  had  all  been 
Chinese,  they  would  have  received  exactly  the  same  treat- 
ment. This,  I  admit,  is  indeed  true.  But  the  fact  remains 
that  for  the  same  offence  committed  in  China,  different  pun- 
ishments are  imposed  according  as  the  offender  is  a  foreigner 
or  a  Chinese.  A  Chinese  offender  is  severely  dealt  with  in 
accordance  with  the  law  of  the  land,  but  a  foreign  offender  is 
tried  by  a  different  code,  which  is  more  lenient  in  its  provis- 
ions, and  receives  far  less  punishment  for  the  consequences 
of  his  misdeeds."  ^ 

It  may  be  suggested,  however,  that  the  disadvantages  to 
which  Chinese  defendants  in  mixed  cases  are  subject  at 
present,  as  the  result  of  the  severity  of  Chinese  laws  as 
compared  with  those  of  foreign  nations,  could  be  removed 
by  the  Chinese  Government,  by  providing  in  statutes  that 
Chinese  defendants  in  such  cases  should  not  be  liable  to 
undergo  punishments  or  penalties,  or  to  pay  damages, 
greater  than  those  prescribed  for  similar  cases  by  the  laws 
of  the  plaintiff's  nation.  Such  a  law  cannot  be  impugned 
on  the  ground  of  discrimination ;  on  the  contrary,  it  could 
be  upheld  on  principles  of  reciprocity  and  fairness.  In 
criminal  cases,  it  may  probably  be  difficult  of  application 
by  reason  of  the  peculiar  character  as  well  as  of  the  diver- 
sity of  foreign  laws,  or  undesirable  from  the  standpoint  of 
the  Chinese  ruling  authorities,  as  the  differentiation  may 
diminish  the  deterrent  effect  of  Chinese  punishments;  yet 
in  civil  matters,  such  as  suits  for  damages  or  for  recovery 
of  debt,  such  difficulties  or  considerations  do  not  seem  to 
be  inevitable,  at  least  not  to  the  same  extent,  and  some  such 
protective  law,  as  has  been  indicated,  may  be  profitably 
adopted  in  the  interest  of  justice  to  Chinese  defendant^ 
in  mixed  cases. 

*  Dr.    Wu   Ting    Fang's    Address   before  the    New    York    State    Bar 
Ass'n,  January  15.  1901.     63  Albany  Laiv  Jounml  (iQOi),  49-54- 


CHAPTER  XI 
The  Extent  of  the  Extraterritorial  Jurisdiction 

The  jurisdiction  which  a  treaty  power  exercises  in  China 
extends  over  all  the  subjects  and  all  the  property  belonging 
to  them,  subject  to  certain  limitations  which  will  presently 
be  discussed.  Of  the  two  kinds  of  subjects  of  jurisdiction, 
namely,  person  and  property,  the  former  is  more  com- 
pletel}^  exempt  from  the  territorial  jurisdiction  than  the 
latter.  The  personal  jurisdiction  of  consular  courts  is  so 
extensive  that  even  foreign  employees  in  the  service  of  the 
Chinese  Government  are  not  beyond  its  reach.  Where 
British  subjects  in  the  Chinese  Customs  Service,  for  ex- 
ample, commit  a  tort  on  another  person,  they  may  be  sued 
in  the  British  consular  court  in  the  district  where  they  re- 
side or  in  the  British  Supreme  Court  at  Shanghai,  as  the 
case  may  be,  and  the  process  of  either  tribunal  can  compel 
them  to  appear  before  it  and  answer  for  their  acts,  even 
though  such  acts  were  done  by  them  officially  in  the  service 
of  the  Chinese  Government,  and  have  been  adopted  by  the 
latter  as  acts  of  state;  although  when  such  justification  is 
pleaded  and  proved,   they  are  not  holden  civilly  liable.^ 

'  This  was  substantially  the  opinion  given  by  Earl  Russell,  Secretary 
of  Foreign  Affairs,  to  Sir  F.  Bruce,  minister  to  China,  August  14,  1863, 
after  consultation  with  law  officers  of  the  Crown,  in  the  case  of  Bow- 
man V.  Fitzgray.  The  suit  was  brought  originally  in  the  British  con- 
sular court  at  Shanghai  in  1862  against  the  defendant,  for  seizure  of 
goods,  as  a  Chinese  custom  officer,  and  on  the  question  of  jurisdiction 
being  raised,  the  plaintiff  applied  for  and  obtained  from  the  Supreme 
Court  of  Hongkong  a  writ  of  mandamus  directing  Mr.  Medhurst,  the 
British  consul,  to  try  the  case.  Thereupon  Prince  Kung,  on  the  part 
of  the  Chinese  Government,  protested  against  the  procedure,  and  the 
matter  was  ultimately  referred  by  Sir  F.  Bruce  to  Earl  Russell,  who 
315]  193 


194  THE  STATUS  OF  ALIENS  IN  CHINA  [316 

In  a  criminal  case  the  accused  foreign  employee  in  the 
service  of  the  Chinese  Government  is  no  less  subject  to  the 
jurisdiction  of  his  consul;  he  is  bound  to  resign  his  position 
and  appear  before  the  proper  consular  court  to  plead,  though 
his  plea  of  official  authority  and  governmental  approval  for 
his  acts,  when  it  is  proved,  entitles  him  to  an  acquittal.^ 
The  question  was  once  directly  raised  in  the  case  of  Ed- 
ward Page,  a  British  subject,  employed  in  the  Imperial 
Maritime  Customs  at  Canton,  who  on  October  26.  1880, 
shot  and  killed  a  Chinese,  while  attempting  to  smuggle 
goods  into  the  country.  Page,  when  arraigned  in  the 
British  Supreme  Court  upon  an  indictment  charging  him 
with  murder  and  with  manslaughter,  pleaded  to  the  juris- 
diction of  the  court  because,  declaring  that  while  he  was  not 

forthwith  rendered  the  opinion  as  above  stated. — Pari.  Papers,  China 
No.  3  (1864),  31,  32,  94.  A  similar  view  of  the  question,  as  regards 
citizens  of  the  United  States  in  the  service  of  the  Chinese  Government 
committing  torts,  was  expressed  by  Mr.  Angell,  American  minister  at 
Peking,  in  the  despatch  of  April  30,  1881,  to  Mr.  Blaine,  Secretary  of 
State.  "  In  civil  cases,"  stated  he,  "  if  the  defendant  pleads  and  proves 
that  his  act  is  official  and  approved  by  the  Chinese  Government,  I  think 
his  plea  should  cover  him.  But  even  in  such  cases  he  should  appear 
before  the  consul  and  plead  and  prove  his  official  authority  for  his  act." 
—For.  Rel.,  1881,  p.  257. 

^  Mr.  Hitt,  Acting  Secretary  of  State  at  Washington,  in  his  instruc- 
tions to  Mr.  Angell,  Minister  at  Peking,  August  16,  1881,  stated : 

"  The  regulation,  the  substance  of  which  is  given  in  your  despatch, 
namely,  that  if  any  foreign  employee  of  the  Chinese  customs  kills  or 
wounds  any  person,  he  shall  at  once  resign  his  place  and  report  to  the 
consul  of  his  nationality  within  whose  jurisdiction  he  resides,  and  that 
if  the  consul  acquits  him  or  decides  that  there  is  no  cause  for  trial, 
such  employee  may  resume  his  station  with  full  pay  during  the  time, 
since  his  resignation,  appears  to  be  a  just  and  reasonable  one. 

"If  in  such  a  case  the  consul  found  that  the  employee  killed  or 
wounded  a  man  in  the  discharge  of  his  official  duty,  and  under  such  cir- 
cumstances as  that  he,  if  tried  by  a  Chinese  tribunal,  would  be  held 
guiltless,  or  such  as  would,  under  the  laws  of  the  United  States,  make 
the  act  justifiable  or  excusable,  it  would  be  the  duty  of  the  consul  to 
discharge  him." — For.  Rcl.,  1881,  p.  286. 


317]  EXTENT  OF  JURISDICTION  195 

guilty,  his  acts  on  the  occasion  under  consideration  were 
official,  and  had  been  examined,  approved,  and  ratified  by 
the  Tsungli  Yamen  as  acts  of  state.  Chief  Justice  French, 
however,  decided  that  the  defendant  must  plead,  which  he 
did,  and  after  trial  he  was  acquitted.^ 

It  is  perhaps  unnecessary  to  state  that  the  extraterri- 
toriality accorded  by  China  to  subjects  of  treaty  powers  is 
not  limited  as  to  locality :  it  is  coextensive  with  the  confines 
of  the  Empire.  Wherever  a  subject  of  a  foreign  power 
may  go  within  the  Chinese  dominions  he  brings  with  him 
his  right  of  exemption  from  the  territorial  jurisdiction. 
In  fact  many  of  the  treaties  now  in  force  expressly  provide 
that  a  foreign  subject  committing  an  offense  against  the 
law  in  any  part  of  the  community  shall  be  handed  over  to 
the  nearest  consul  of  his  nation  for  punishment,  but,  in  the 
language  of  the  British  treaty  of  1858,  "  he  must  not  be 
subjected  to  ill  usage  in  excess  of  necessary  restraint."  An 
American  diplomat  commenting  on  the  article  in  1858 
stated : 

This  rendered  into  plain  language  means  that  the  foreigner 
who  commits  a  rape  or  murder  a  thousand  miles  from  the 
sea-board  is  to  be  gently  restrained,  and  remitted  to  a  consul 
for  trial,  necessarily  at  a  remote  point  where  testimony  could 
hardly  be  obtained  or  ruled  on.^ 

Nevertheless  this  has  been  the  procedure  in  practice. 

On  the  same  ground  of  the  grant  by  China  of  entire 
jurisdiction  over  subjects  of  the  treaty  powers  in  her  terri- 
tory, it  was  declared  as  early  as  1864  by  another  American 
minister  at  Peking,  that  "  the  Chinese  Government  cannot 
withdraw  a  consul's  exequatur."  ^ 

1  For.  Re!.,  1881,  p.  257. 

*  Mr.  Reed,  Minister  to  China,  to  Mr.  Cass,  Sec.  of  State,  July  29, 
1858,  S.  Ex.  Doc.  30,  36  Cong.,  i  Sess.,  p.  382. 

'  Mr.  Burlingame's  instructions  to  United  States  Consuls  in  China, 
June  IS,  1864,  Dipt.  Cor.  1864,  pt.  iii,  p.  426. 


CHAPTER  XII 

Limitations  of  the  Extraterritorial  Jurisdiction 

§  I.  Limitations  founded  on  treaty  stipulations 

The  limitations  upon  the  exercise  of  the  extraterritorial 
jurisdiction  in  China  spring  from  many  sources,  one  of 
which  is  treaty  stipulations.  For  an  example,  while  for- 
eign property  is  considered  inviolable  _by  Chinese  authori- 
ties, and  subject  only  to  the  jurisdiction  of  the  courts  of 
the  owner's  nation,  ships  and  goods  belonging  to  a  foreign 
merchant  may,  under  existing  treaties  and  regulations,  be 
seized  and  confiscated  by  the  Chinese  customs  officials  for 
breach  of  the  established  revenue  laws  of  the  Empire,  with- 
out being  entitled  to  any  countenance  of  protection  from  the 
Government  of  the  owner's  state. 

When,  however,  the  act  of  which  a  merchant  at  any  port 
is  accused  is  not  one  involving  the  confiscation  of  ship  or 
cargo,  but  is  one  which  by  treaty  or  regulation,  is  punish- 
able by  fine,  then  it  is  necessary  to  cause  a  complaint  to 
be  entered  in  the  consular  court  of  the  merchant's  nation, 
and  the  consul  will  try  the  case  and  the  customs  commis- 
sioner is  entitled  to  take  his  seat  on  the  bench  and  conduct 
the  case  on  behalf  of  the  prosecution.  Where  a  specific 
fine  for  the  offense  is  prescribed  by  the  treaty  or  regula- 
tions, the  consul  is  bound,  on  conviction,  to  give  judgment 
for  that  amount,  the  power  of  mitigating  the  sentence  rest- 
ing with  the  Chinese  superintendent  or  commissioner.^ 

*  Rule  vi  of  the  Customs  Rules  of   May  31,   i858,   Hertslct's  China 
Treaties,  ii,  pp.  655,  657. 

196  [318 


319]  LIMITATIONS  OF  JURISDICTION  197 

An  attempt  made  in  1862  by  the  Chinese  customs  au- 
thorities at  Ningpo  to  fine  an  American  vessel  for  breach 
of  the  port  regulations  was  made  the  subject  of  a  vigorous 
protest  by  the  United  States  Minister  at  Peking.  This 
was  the  case  of  the  Bark  Agnes.  The  ship  put  into  the  port 
of  Ningpo  with  a  cargo  and  Captain  King  duly  paid  the 
duties  and  obtained  a  permit  to  unload  his  goods.  He 
landed  a  part  of  them  after  sunset,  which  was  against  the 
port  regulations,  and  upon  the  local  officer's  attempt  to  stop 
him,  he  used  rough  language.  Thereupon,  the  superin- 
tendent of  the  customs,  afterwards  sustained  by  the  local 
Taotai,  ordered  the  portion  that  had  been  already  landed  to 
be  seized  and  placed  a  prohibition  on  the  landing  of  the  re- 
mainder until  the  Captain  had  apologized  and  paid  a  fine  of 
300  taels.  The  matter  was  subsequently  referred  to  Peking, 
In  his  note  to  Prince  Kung,  December  15,  1862,  Mr. 
Burlingame,  the  American  Minister,  made  a  strong  pro- 
test, stating  as  follows : 

Now,  the  undersigned  does  not  deny  the  right  of  the  Chinese 
Government  to  enforce  its  revenue  laws  by  the  seizure  and 
confiscation  of  that  property  which  is  found  after  the  owner 
has  violated  the  law,  as  when  goods  have  been  smuggled ;  but 
he  does  deny  the  right  of  the  Chinese  authorities  to  punish 
or  fine  citizens  of  the  United  States  under  any  circumstances. 
That  can  only  be  done,  according  to  Article  XI  of  the  treaty, 
by  the  United  States  consul.  In  this  case  the  Captain,  after 
the  duties  were  paid  and  the  permit  granted,  was  entitled  to 
land  his  cargo.  If,  in  landing  it,  he  violated  the  port  regula- 
tions, then  only  so  much  could  be  seized  as  was  landed  con- 
trary to  law ;  that  which  had  not  been  landed  was  where  it 
had  a  right  legally  to  be. 

Then  referring  to  the  action  of  the  superintendent  and 
the  Taotai,  Mr.  Burlingame  continued : 


198  THE  STATUS  OF  ALIENS  IN  CHINA  [320 

All  this  was  an  infringement  of  the  jurisdiction  of  the 
United  States  consul,  clearly  wrong,  and  renders  the  wrong- 
doers responsible  to  the  Captain  for  any  damages  he  may 
have  suffered  by  such  illegal  proceedings. 

He  then  has  to  request  that  Your  Highness  will  at  once  in- 
struct the  officers  at  Ningpo  to  remove  the  prohibition  from 
the  vessel,  to  restore  to  the  captain  his  rights,  and  to  com- 
pensate for  whatever  loss  he  may  have  been  subjected  to  by 
these  illegal  proceedings. 

The  undersigned  engages  that  the  United  States  consul  at 
Ningpo  shall  enter  into  a  full  examination  of  the  conduct  of 
the  captain,  and  punish  him  for  any  improper  act  he  may 
have  committed.^ 

In  his  reply  of  December  27,  1862,  Prince  Kung  seems 
to  have  fully  accepted  the  American  Minister's  arguments, 
for  he  observed  that  "  although  the  custom-house  had  a 
right  to  send  a  tide-waiter  on  board  of  her  to  superintend 
the  landing,  it  had  none  to  seize  upon  any  goods  or  impose 
a  fine  of  300  taels;"  and  that  the  prohibition  laid  by  the 
custom-house  on  the  landing  of  the  remaining  goods  in  the 
"  Agnes  "  was  also  wrong.  Instructions,  it  was  further 
stated,  had  accordingly  been  sent  to  the  Provincial  authori- 
ties to  examine  the  case,  and  "  if  no  attempt  to  smuggle, 
and.  indeed,  nothing  besides  landing  cargo  after  sunset  can 
be  laid  to  the  charge  of  the  vessel,  then  to  withdraw  at  once 
the  prohibition,  and  by  no  means  exact  any  fine  from  the 
captain."  " 

1  Dipl.  Con:,  1863,  pt.  ii,  p.  845- 

2  Ibid.  With  reference  to  the  objection  of  the  Chinese  Government  to 
Section  3  of  the  United  States  anti-opium  law  of  February  23,  1887. 
Mr.  Denby  in  his  despatch  to  Mr.  Bayard,  May  14,  1887  states: 

"  I  agree  that  the  clause  (in  Section  3)  is  antagonistic  to  the  four- 
teenth article  of  the  treaty  of  1858,  if  opium  is  'a  contraband  article 
of  merchandise.' 

"  Under  the  said  article  contraband  merchandise  is  to  be  dealt  with 
exclusively  by  the  Chinese  Government.   But  it  has  never  been  admitted 


32 1 ]  LIMITATIONS  OF  JURISDICTION  199 

§  2.  Limitations  founded  on  international  law. 

The  exercise  by  Treaty-Powers  of  exclusive  jurisdiction, 
civil  and  criminal,  over  their  subjects  in  China  is  limited 
by  the  rules  of  international  law,  which  are  observed  by 
states  in  their  mutual  intercourse.  Thus  in  a  case  where 
offenses  are  committed  in  China  by  nationals  enrolled  on 
the  articles  of  a  foreign  ship,  in  conformity  with  the  estab- 
lished usage  among  maritime  powers,  the  jurisdiction  of 
the  court  of  the  nation  to  which  the  vessel  belongs  may  pre- 
vail over  that  of  the  court  of  the  offenders'  nation.  For 
instance,  the  circular  of  the  Department  of  State  at  Wash- 
ington, under  date  of  June  i,  1881,  states: 

In  China  and  Japan  the  judicial  authority  of  the  consuls 
of  the  United  States  will  be  considered  as  extending  over  all 
persons  duly  shipped  and  enrolled  upon  the  articles  of  any 
merchant  vessel  of  the  United  States,  whatever  be  the  nation- 
ality of  such  persons,  and  all  offenses  which  would  be  jus- 
ticiable by  the  consular  courts  of  the  United  States,  where  the 
persons  so  offending  are  native  born  or  naturalized  citizens 
of  the  United  States  employed  in  the  merchant  service  there- 
of, are  equally  justiciable  by  the  same  Consular  Courts  in  the 
case  of  seamen  of  foreign  nationality.^ 

Whether  in  the  case  supposed  the  jurisdiction  of  the 
Court  of  the  ship's  nationality  is  exclusive  of,  or  concurrent 
with,  that  of  the  Court  of  the  offender's  nation,  the  ques- 
tion seems  to  be  settled;  though  it  would  be  exclusive,  if 
the  offenses  were  committed  on  the  high  seas.  In  an  inter- 
esting case,  which  arose  in  July.  1906,  the  decision  of  the 

by  my  predecessors,  and  is  distinctly  disaflfirmed  by  me,  that  a  citizen 
of  the  United  States  can  be  tried  for  any  offense  and  personally  pun- 
ished except  by  his  own  consul."    For.  Rel.,  1887,  p.  211. 
*  G.  H.  Scidmore,  United  States  Courts  in  Japan,  p.  228. 


200  THE  STATUS  OF  ALIENS  IN  CHINA  [322 

Danish  Consular  Court  at  Shanghai  seems  to  indicate  that 
Denmark  would,  in  the  case  supposed,  consider  the  jurisdic- 
tion of  the  t\^■o  courts  to  be  concurrent,  though  the  Ameri- 
can consul  held  a  contrary  opinion,  possibly  on  the  sole 
ground  that  the  offense  in  that  case  was  committed  on  the 
high  seas,  which  was  not  certain. 

The  facts  of  the  case  in  1906  were  these:  Two  firemen 
of  the  Danish  steamer  Indian  were  arrested  in  Shanghai  by 
the  municipal  police,  on  a  charge  of  larceny  of  £64  19s.  6d. 
from  a  passenger  on  board,  when  the  vessel  was  somewhere 
between  Nagasaki  and  Shanghai.  When  brought  before 
the  Danish  consul,  one  of  the  accused  declared  that  he  was 
a  Norwegian  and  the  other  that  he  was  an  American; 
whereupon  the  consul  declined  to  entertain  jurisdiction  and 
remanded  the  offenders  to  their  respective  consuls.  The 
American  consul  declared  that  he  could  not  see  how  he  had 
jurisdiction  over  Eastman,  the  American,  since  his  name 
was  on  the  articles  of  a  Danish  ship.  For  the  same  reason 
the  Norwegian  consul  declined  to  try  Nielson,  the  Nor- 
wegian.^ The  reasoning  of  the  American  consul's  decision 
was  that  it  was  a  well-defined  principle  of  international  law 
that  a  vessel  while  upon  the  high  seas  was  to  be  regarded 
as  a  part  of  the  country  whose  flag  she  bore,  that  all  of- 
fenses and  crimes  against  the  laws  of  the  country  were  ac- 
cordingly cognizable  by  its  tribunals  alone ;  and  that  the 
crime  with  which  the  prisoner  was  charged  having  been 
committed  on  the  high  seas,  and  while  he  was  one  of  a 
crew  of  a  foreign  vessel,  the  American  consul  could  take 
no  jurisdiction  over  him.^  The  two  prisoners  were  brought 
before  the  Danish  court  again,  and  on  August  8,  1906,  Mr. 
T.  Raaschon  delivered  an  opinion,  part  of  which  follows: 

'80  North  China  Herald  C1906),  267. 
» Ibid.,  p.  282. 


323]  LIMITATIONS  OF  JURISDICTION  20I 

Since  the  offense  complained  of  is  a  breach  of  the  common 
criminal  law  and  is  outside  the  class  of  offenses  punishable 
under  the  maritime  law,  and  since  it  was  found,  when  this 
case  was  previously  before  this  court,  that  the  theft,  if  com- 
mitted, took  place  in  Chinese  sea  territory,  where  the  Treaty- 
Powers  have  jurisdiction  over  their  nationals,  the  case  was 
considered  to  be  one  of  concurrence  of  jurisdiction;  namely, 
of  jurisdiction  of  territory  and  jurisdiction  of  flag.  In  such 
cases  the  instructions  for  Danish  consuls  are  to  give  preced- 
ence to  the  authority  having  jurisdiction  of  territory  and  the 
accused  were  therefore  handed  over  to  their  respective  con- 
sulates. These,  however,  declined  jurisdiction ;  the  Danish 
courts  as  the  authorities  of  flag  must  deal  with  the  case. 

The  consul  then  stated  that  his  court,  being  a  treaty  court, 
was  ordinarily  only  competent  in  cases  against  its  own 
nationals;  and  that  the  case  should  have  been  sent  to  the 
home  courts  or  a  special  authority  for  his  court  asked  for ; 
that  he  had  chosen  the  latter  course  and  had  obtained  the 
necessary  authorization  to  proceed  to  deal  with  the  case. 
The  prisoners  were  accordingly  tried,  convicted  on  evi- 
dence, and  sentenced  to  ten  and  twenty  days'  imprison- 
ment respectively.^ 

Another  limitation  springing  from  international  law  on 
the  exercise  of  extraterritorial  jurisdiction  by  a  Treaty- 
Power  in  China  operates  in  the  case  of  its  subjects  being- 
engaged,  under  obligation  of  contract  entered  into  in  time 
of  peace,  in  the  military  operations  carried  on  by  a  third 
power  ^  at  war  with  China.  Apropos  of  the  threatened  at- 
tack of  Formosa  by  Japan  in  1874,  Mr.  Hamilton  Fish, 

"^  North  China  Herald  (1906).  p.  358. 

*Most  Treaty- Powers,  notably  the  United  States  and  Great  Britain. 
prohibit  their  subjects  in  China,  under  the  penalty  of  capital  punish- 
ment, from  taking  part  in  or  aiding  a  rebellion  against  the  territorial 
Government. 


202  THE  STATUS  OF  ALIENS  IN  CHINA  [324 

Secretary  of  State  at  Washington,  in  his  instructions  of 
August  26  to  Mr.  Seward,  consul-general  at  Shanghai, 
stated  that  should  a  citizen  of  the  United  States  already  in 
the  military  service  of  Japan,  join  the  proposed  hostile  at- 
tack, he  would  do  so  not  as  an  American  citizen,  but  as  a 
soldier  in  the  army  of  one  of  the  belligerent  nations;  that 
the  United  States  w^ould  take  no  notice  as  against  the  at- 
tacked party,  should  he  be  killed  in  battle  in  the  ordinary 
course  of  civilized  warfare ;  and  that  in  case  of  his  being 
taken  prisoner,  it  "  would  not  exact  more  in  his  behalf  than 
that  no  unusual  or  inhuman  punishment  be  inflicted  upon 
him,  and  would  only  watch  and  require  that  as  prisoner  of 
war  he  be  treated  according  to  the  accepted  rules  of  civil- 
ized warfare/  It  may  be  added  that  from  the  strictly  legal 
point  of  view,  even  this  claim  for  humane  treatment  the 
United  States  would  have  been  excluded  from  making  since, 
in  such  a  case,  Japan  alone  would  have  been  the  rightful 
claimant. 

i^  3.  Limitations  founded  on  statutes 

The  extraterritorial  jurisdiction  thus  modified  by  treaty 
stipulations  and  the  transcendent  rules  of  international  law, 
so  far  as  its  exercise  by  the  foreign  courts  in  China  is  con- 
cerned, is  again  limited  by  statutes.  The  jurisdiction  of 
such  courts  is  altogether  statutory,  and  therefore  it  extends 
only  so  far  as  is,  expressly  or  impliedly,  authorized  by  the 
laws  of  their  respective  states.  Whatever  is  not  so  placed 
within  their  competency  is  not  justiciable  by  them,  though 
the  matter  might  be  one  entirely  within  the  scope  of  the 
treaty  grant  of  extraterritorial  jurisdiction.  In  his  circular 
note  to  Briti.sh  Consuls  in  China,  November  22,  1844,  Sir 

*  For.  Rel.,  1874,  p.  332.  The  same  opinion  was  expressed  by  Mr. 
Fish  in  his  instructions  to  Mr.  Williams,  charge  d'affaires  at  Peking, 
July  29,  1874,  ibid.,  p.  .100. 


325]  LIMITATIONS  OF  JURISDICTION  203 

John  F.  Davis,  Chief  Superintendent  of  British  Trades, 
after  stating  that  the  right  of  the  British  Crown  to  exercise 
any  jurisdiction  in  China  "  is  strictly  limited  to  the  terms  in 
which  the  concession  is  made,"  continues  to  observe : 

The  right  depends,  in  the  next  place,  on  the  extent  to  which 
the  Queen,  in  the  exercise  of  the  powers  vested  in  Her 
Majesty  by  Act  of  Parliament,  may  be  pleased  to  grant  to  Her 
Consular  Servants,  through  Her  Majesty's  superintendent  in 
China,  authority  to  exercise  jurisdiction  over  British  subjects; 
and  therefore  the  ordinances  which  may  from  time  to  time  be 
issued  are  the  only  warrants  for  the  proceedings  of  the  con- 
suls, and  exhibit  the  rules  to  which  they  must  scrupulously 
adhere.^ 

In  the  case  of  Walter  Jackson,  an  American  citizen,  who 
had  escaped  from  British  justice  at  Hongkong  into  Shang- 
hai, the  proposal  of  the  American  consul  at  the  latter  port 
to  hold  extradition  proceedings  and  deliver  him  up  to  the 
Hongkong  authorities  was  discountenanced  and  disap- 
proved by  the  State  Department  on  the  ground,  among 
others,  that  no  authority  was  given  by  the  laws  of  the 
United  States  to  any  consular  officer  to  exercise  such  a 
pow'er.- 

§  4.  Limitations  founded  on  policy 

Besides  the  limitations  born  of  treaties,  international 
law,  and  statutes,  the  extraterritorial  jurisdiction  exer- 
cisable by  consular  courts  in  China  may  be  subjected  to  a 
diminution  or  disability  in  respect  to  subjects  of  their  own 
nationality,  who  might  be  justiciable  by  them,  but  wdio  on 
account  of  their  incorrigible  conduct,  have  been  voluntarily 

'  Pari.  Papers,  1847,  xxxx,  China,  no.  795,  p.  38. 

'Mr.  Hunter,  Assistant  Secretary  of  State,  to  Mr.  Seward,  consul  at 
Shanghai,  August  31,  1874,  For.  Rel.  1874,  p.  338;  Mr.  Cadwalader, 
Acting  Secretary  of  State  to  Mr.  Seward,  Oct.  23,  1874;  ibid.,  p.  347. 


204  THE  STATUS  OF  ALIENS  IN  CHINA  [326 

abandoned  by  their  own  Government  on  grounds  of  policy, 
to  be  dealt  with  by  the  territorial  authorities.  A  case  of 
this  kind  occurred  in  1865.  General  Burgevine,  an  Ameri- 
can citizen,  who  had  in  1862  been  placed  by  the  Chinese 
Government  in  command  of  an  Imperial  army  to  suppress 
the  Taipung  Rebellion,  was  charged  with  disobedience  to 
orders  from  Peking,  and  Prince  Kung,  in  his  note  to  Mr. 
Burlingame,  January  25,  1863,  expressed  himself  as  being 
of  opinion  that  "  Burgevine,  being  now  a  Chinese  subject, 
and  having  offended  against  the  law  of  the  country,  cer- 
tainly ought  to  be  arrested  and  punished  in  accordance  with 
the  law  of  China  "  ;^  although  the  Prince,  on  protest  of  the 
American  Minister,  abandoned  this  view  for  a  time.  Sub- 
sequently, however,  when  Burgevine,  after  having  been 
once  expelled  from  the  country  in  consequence  of  his  having 
taken  part  in  the  rebellion  against  the  Government,  stealthily 
returned  to  China  in  1865,  rejoined  the  insurgents,  and 
was  captured  as  a  prisoner.  Prince  Kung  refused  to  give 
him  up,  alleging  that  Mr.  Burlingame  had  yielded  all  claim 
over  him  if  he  should  again  be  taken  in  the  Emperor's 
dominions. 

Thereupon,  on  June  26,  1865,  Mr.  Williams,  the  Ameri- 
can charge  d'affaires  at  Peking,  reported  Burgevine's  sec- 
ond capture  to  the  State  Department,  and  recommended 
that  the  prisoner  be  yielded  to  the  Chinese  Government  for 
the  reason  that  "  the  example  will  deter  others  from  tres- 
passing so  far  on  the  rights  of  Americans  as  to  stir  up  sedi- 
tion, trusting  to  the  want  of  witnesses  and  other  legal  proof 
to  escape  condemnation."  ^  This  recommendation  was  ac- 
cepted though  in  guarded  language  by  the  Government  of 
the  United  States,  as  on  November  6,  1865,  Mr.  Seward, 
Secretary  of  wState,  wrote  to  Mr.  Williams  as  follows: 

1  Dit>!.  Con:,  1863,  pt.  ii,  p.  866. 
*  /)//'/.  Corr.,  1865,  pt.  ii,  p.  452. 


327]  LIMITATIONS  OF  JURISDICTION  205 

In  reply,  I  have  to  inform  you  that  the  President  is  of 
opinion  that  the  offender  Burgevine  may,  upon  a  just  con- 
viction, be  left  to  the  Chinese  custody  without  being  reclaimed 
by  the  United  States  representative.  But  this  is  to  be  under- 
stood to  rest  upon  our  voluntary  consent  upon  the  grounds 
of  national  honor,  and  not  upon  Chinese  right  under  treaty 
stipulations.^ 

From  the  practical  point  of  view,  this  was  not  a  case  of 
honor  but  one  of  necessity;  honor  is  not  a  sufficient  ground 
upon  which  to  base  the  abandonment  of  a  right;  on  the 
other  hand,  it  is  necessary  that  he  who  is  permitted  by  his 
own  country  to  enter  the  military  service  of  a  foreign 
nation,  should  be  subjected  to  the  jurisdiction  of  that 
nation.  But  before  Mr.  Seward's  instructions  were  put 
into  execution,  however,  Burgevine  met  with  death  by  the 
accidental  capsizing  of  the  boat  in  which  he  was  being 
transferred  to  Fukchau,  and  the  matter  was  thus  dropped; 
although  it  must  be  added  that  in  notifying  Mr.  Williams 
of  this  fact,  on  September  i,  1865,  Prince  Kung  did  not 
omit  to  observe  that  Burgevine  himself  being  "  a  man,  who, 
by  his  frequent  connections  with  the  rebels,  had,  as  you 
formerly  remarked,  acted  so  as  to  lose  the  countenance  of 
his  own  country.  It  would  have  been  right,  therefore,  to 
have  regarded  him  as  amenable  to  the  laws  of  China."  ' 

§  5.  The  jurisdiction  primarily  personal 
It  has  been  said  in  a  preceding  section  that  as  a  rule  the 
jurisdiction  exercisable  by  a  Treaty- Power  in  China  ex- 
tends over  all  the  subjects  as  well  as  over  all  the  property 
belonging  to  them.  This  extent  of  the  jurisdiction,  how- 
ever, is  its  own  limitation ;  it  is  primarily  personal.  Except 
as  regards  foreign  members  of  the  crew  of  a  national  ship, 

1  Dipl.  Corr.,  1865,  pt.  ii,  p.  462. 
*Dipl.  Corr.,  1866,  pt.  i,  p.  471. 


2o6  THE  STATUS  OF  ALIENS  IN  CHINA  [328 

the  jurisdiction  of  a  consular  court  in  China  cannot  under 
the  treaties  extend  over  persons  other  than  the  subjects  of 
the  nation  to  which  it  itself  belongs. 

The  doctrine  of  assimilation,  which  prevails  in  Moham- 
medan countries  whereby  an  alien,  whether  his  own  gov- 
ernment has  treaty  relations  with  the  territorial  sovereign 
or  not,  is  considered  to  be  entitled,  as  against  the  exercise 
of  jurisdiction  over  him  by  the  local  authorities,  to  the 
protection  of  the  consulate  in  whose  registry  he  has  made 
an  entry,  is  not  recognized  at  all  in  China.  Nor  does  the 
system  of  proteges  exist  there.  During  the  Franco-Chinese 
war  the  Russian  consul  at  Shanghai  had  certain  French- 
men arrested  in  that  port  actually  brought  before  him  for 
hearing,  although  his  authority,  as  conferred  by  France  and 
recognized  by  China,  was  limited  to  the  use  of  good  offices 
in  behalf  of  French  citizens.^  But  with  the  possible  ex- 
ception of  Russia,  the  treaty  powers  have  uniformly  ob- 
served the  essentially  personal  character  of  the  extraterri- 
torial jurisdiction  as  accorded  them  by  China.*  Great 
Britain  and  the  United  States,  for  example,  both  of  which 
have  upheld  the  doctrine  of  assimilation  in  Mohammedan 
states,  disclaim  such  practice  in  China.^  Sir  Frederick  W. 
A.  Bruce,  British  Minister  to  China,  in  his  circular  instruc- 
tions to  British  consuls  within  his  jurisdiction,  May  16, 
1864,  says: 

^  4  Moore,  Intent.  Law  Digest,  606. 
'  See  infra,  sec.  18. 
^  See  on  this  point  the  interesting  case  of  Koszta  (3  Moore, 
Intern.  Law  Digest,  820-854),  in  which  this  doctrine  of  assimilation 
was  invoked  by  the  United  States  Government  as  the  main  support  of 
its  argument  in  the  conduct  of  its  agents,  who  threatened  to  use  force 
in  order  to  secure  the  release  of  Koszla,  who  had  been  arrested  in 
Smyrna  by  the  Austrian  consul  and  placed  in  custody  on  board  the 
Austrian  brig-of-war  "Huszar". 


329]  LIMITATIONS  OF  JURISDICTION  207 

According  to  the  laws  of  most  countries  a  man  cannot, 
without  the  permission  of  his  government,  withdraw  himself 
from  his  national  and  submit  to  a  foreign  authority,  and  the 
attempts  by  the  consul  to  exercise  any  such  jurisdiction  might 
lead  to  serious  protests  on  the  part  of  other  governments; 
moreover,  Her  Majesty's  government  has  not  empowered  her 
agents  in  China  to  accept  any  such  jurisdiction  over  foreigners 
or  Chinese,  and  it  is  not  expedient  or  politic  to  advance  any 
such  claim.  The  subjects  of  other  nations,  if  entitled  to 
buy  lots,  must  be  dealt  with  exclusively  by  their  national 
consuls,  if  they  are  subjects  of  Treaty- Powers ;  and  if  they 
are  subjects  of  non-treaty  powers,  it  is  for  the  Chinese  gov- 
ernment to  devise  a  means  of  making  them  obey  the  law. 
Her  Majesty's  consuls  acquire  no  valid  rights  over  them  by 
reason  of  their  living  on  a  lot  leased  from  the  Crown,  or  in 
virtue  of  any  engagement  they  may  personally  enter  into. 
Should  there  be  any  attempt  to  exercise  jurisdiction  over  a 
foreign  lessee  against  his  will,  the  legality  of  the  proceeding 
could  not  be  sustained.^ 

This  view  of  the  limitations  of  the  extraterritorial  juris- 
diction in  China  continues  to  be  entertained  by  the  British 
Government  to-day.  Hall  has  observed  that  while  the 
Orders  in  Council  relative  to  the  exercise  of  British  juris- 
diction in  the  Ottoman  dominions,  Persia,  Morocco,  Muscat, 
Tripoli  and  Siam,  still  recognize  the  existence  of  a  class 
of  protected  persons,  consisting  of  either  natives  of  the 
territory  or  other  persons  not  British  subjects,  "  it  has  not 
been  the  practice  to  give  protection  in  China  and  Japan,  and 
in  the  Order  in  Council  affecting  those  countries,  no  men- 
tion is  made  of  protected  persons;  jurisdiction  is  restricted 
to  British  subjects."  - 

*  Dipt.  Corr.,  1864,  pt.  iii,  p.  380. 

^Foreign  Jurisdiction  of  the  British  Crozvn  (Oxford,  1894),  pp.  137- 
139- 


oo8  THE  STATUS  OF  ALIENS  IN  CHINA  [330 

The  United  States  Government  has  on  several  occasions 
made  known  its  view  of  the  personal  character  of  the  juris- 
diction conferred  on  the  treaty  powers  by  China.  In  his 
instructions  of  July  25,  1872,  to  Mr.  Low,  Minister  to 
China,  as  to  the  nature  and  extent  of  the  protection  to  be 
extended  by  United  States  representatives  to  Swiss  citizens 
in  that  country,  who  were  without  their  own  national  repre- 
sentatives there,  Mr.  Fish,  Secretary  of  State,  said : 

The  protection  referred  to  must  necessarily  be  confined  to 
the  personal,  unofficial,  good  offices  of  such  functionaries.  Al- 
though when  exercised  to  this  extent  merely,  this  can  prop- 
erly be  done  only  with  the  consent  of  the  Chinese  Govern- 
ment, and  that  consent  must  not  be  allowed  to  imply  an  obliga- 
tion on  the  part  of  a  diplomatic  or  consular  officer  of  the 
United  States  in  that  country  to  assume  criminal  or  civil 
jurisdiction  over  Swiss  citizens,  or  to  make  himself  or  his 
government  accountable  for  their  acts.^ 

When  later  in  the  same  year  Mr.  Fish  was  apprised  of 
the  conduct  of  Mr.  Jewell,  the  American  consul  at  Canton, 
who  undertook  to  try  in  his  consular  court  a  citizen  of  New 
Granada  (now  known  as  Columbia)  on  a  criminal  charge, 
he  sent  new  instructions  to  Mr.  Low,  January  8,  1873,  simi- 
lar in  principle  to  those  he  gave  as  to  Swiss  citizens,  but 
with  even  greater  emphasis.     He  said : 

Mr.  Jewell  had  no  authority  whatever  to  entertain  jurisdic- 
tion of  the  case.  That  he  should  have  fallen  into  the  com- 
mission of  such  an  error,  with  the  laws  of  the  United  States, 
the  consular  instructions  and  the  existing  treaties  between  the 
United  States  and  China  all  before  him,  seems  unaccountable. 
The  reasons  assigned  by  the  consul  for  his  action  can  have  no 
influence  or  weight  in  establishing  as  right  a  proceeding  that 
is  per  se  wrong.     Under  the  laws  of  the  United  States  juris- 

'4  Moore,  Intern.  Law  Digest,  602. 


331]  LIMITATIONS  OF  JURISDICTION  209 

diction  in  a  criminal  case  cannot  be  conferred  by  consent  even 
in  one  of  the  established  courts  of  record  of  the  country. 
Much  less  is  this  the  case  with  the  consular  court,  which  is 
a  tribunal  of  limited  and  inferior  jurisdiction,  possessing  only 
such  powers  as  are  expressly  conferred  by  acts  of  Congress 
in  conformity  with  the  provisions  of  existing  treaties. 

The  waiver  of  their  authority  in  the  matter  by  the  Chinese 
officials  invested  the  consular  with  no  new  or  additional 
powers.  He  is  not  an  officer  of  that  government,  and  he  can 
derive  no  authority  from  it,  directly  or  indirectly,  which  will 
give  validity  to  any  official  action  of  his,  when  such  action  is 
not  warranted  by  the  laws  of  the  United  States  or  his  in- 
structions from  this  Department.  Neither  can  the  juris- 
diction assumed  in  this  case  rest  upon  the  consent  of  the 
accused.  It  would  be  unreasonable  to  demand  for  a  prisoner 
the  right  not  only  to  select  but  to  create  a  tribunal  for  the 
trial  of  his  own  case;  but  the  objection  rests  on  still  higher 
grounds,  and  in  the  interest  of  the  accused  himself,  lest 
through  ignorance  or  mistake  he  may  misconceive  that  interest. 

The  court  before  which  a  criminal  trial  is  proceeding  will 
not,  as  a  general  rule,  permit  the  prisoner  to  waive  any  sub- 
stantial right  secured  to  him  by  law,  and  never  without  fully 
advising  him  of  the  consequence  of  his  action. 

The  principles  of  criminal  law  and  practice  are  so  well 
settled  and  so  universally  recognized  in  American  and  English 
jurisprudence,  that  any  further  discussion  of  them  is  deemed 
wholly  unnecessary. 

In  Oriental  countries,  where,  in  order  to  preserve  to  citizens 
of  the  United  States,  as  far  as  possible,  the  personal  rights 
recognized  as  belonging  to  them  in  their  own  country,  it  is 
found  necessary  to  have  these  rights  and  the  privileges  that 
pertain  to  them  precisely  defined  by  treaty  stipulation,  it  be- 
comes all  the  more  necessary  that  officers  of  the  United 
States  resident  in  those  countries  should,  in  the  exercise  of 
their  functions,  confine  themselves  strictly  within  the  powers 
guaranteed  by  treaty  stipulation  and  regulated  by  settled  prin- 
ciples of  public  law.     Such  a  course  on  their  part  will  not 


2IO  THE  STATUS  OF  ALIENS  IN  CHINA  [332 

only  tend  to  prevent  unpleasant  complications,  but  do  much 
to  secure  from  the  people  of  those  countries  respect  for  the 
rights  of  American  citizens  resident  therein. 

Your  course  in  bringing  this  matter  to  the  attention  of  the 
Department  at  the  earliest  moment  is  commended.  The  action 
of  Mr.  Consul  Jewell  is  disapproved  and  he  will  receive  in- 
formation of  such  disapproval  directly  from  the  Department.^ 

Again,  during  the  Chino-Japanese  war,  Japanese  in 
China,  as  well  as  Chinese  in  Japan,  were  placed  under  the 
friendly  protection  of  United  States  representatives.  In 
his  instructions "  to  Mr.  Denby,  Jr.,  charge  in  Peking, 
August  29,  1894,  as  to  the  precise  nature  of  the  protection 
to  be  extended  to  Japanese  in  China,  which  instructions 
mutatis  mutandis,  were  sent  on  the  same  day  to  Mr.  Dun, 
Minister  at  Tokyo,  in  relation  to  the  protection  of  Chinese 
in  Japan,  Mr.  Gresham,  Secretary  of  State,  said: 

By  consenting  to  lend  its  good  offices  in  behalf  of  Japanese 
subjects  in  China,  this  Government  cannot  assume  to  assimilate 
such  subjects  to  citizens  of  the  United  States,  and  to  invest 
them  with  an  extraterritoriality  which  they  do  not  enjoy  as 
subjects  of  the  Emperor  of  Japan.  It  cannot  assume  to  b.old 
them  amenable  to  the  laws  of  the  United  States  nor  to  the 
jurisdiction  of  our  minister  or  consuls:  nor  can  it  permit  our 
legation  or  our  consulates  to  be  made  an  asylum  for  offenders 
against  the  laws  from  the  pursuit  of  the  legitimate  agents 
of  justice.  In  a  word,  Japanese  subjects  in  China  continue 
to  be  the  subjects  of  their  own  sovereign,  and  answerable  to 
the  local  laws  to  the  same  extent  as  heretofore.  The  employ- 
ment of  good  offices  in  their  behalf  by  another  power  can  not 
alter  their  situation  in  this  regard. 

Accordingly,  when  the  American  consul-general  at  Shang- 

'  For.  Rel,  1873,  pt.  i,  p.  139. 

'4  Moore,  Intern.  Lazv  Digest,  601-603. 


333]  LIMITATIONS  OF  JURISDICTION  211 

hai  refused  to  give  up  to  the  Chinese  authorities  two  Japan- 
ese spies  who  had  been  arrested  in  the  French  concession 
by  the  French  consul  at  the  instance  of  the  Chinese  prefect 
and  delivered  to  him  by  the  consul,  Mr.  Gresham  instructed 
Mr.  Denby  by  telegraph  that  the  consul-general  should  not 
have  received  them  and  was  not  authorized  to  hold  them, 
but  that  they  should  be  surrendered  to  the  Taotai  at  Shang- 
hai unconditionally.^    This  was  done." 

In  fact  the  jurisdiction  of  a  consular  court  in  China  is 
so  primarily  personal  that  in  a  suit  brought  before  it  by  a 
foreign  subjiict  against  one  of  its  own  nationals  it  has  no 
control  over  the  plaintiff  beyond  the  amount  of  money  de- 
posited by  him  as  security  for  costs, — which  for  obvious 
reasons  cannot  be  large.  Take  a  concrete  example.  A 
Chinese  sues  a  British  subject  in  a  British  court  whose 
power  is  limited  to  and  extends  only  over  the  defend- 
ant and  the  Chinese  plaintiff  perjures,  it  cannot  punish 
him,  nor  can  it  commit  him  for  contempt  of  court;  he 
can  be  prosecuted  or  punished  only  in  a  Chinese  court  and 
according  to  Chinese  laws.  Again,  if  the  suit  is  brought 
on  a  claim  for  moneys  due,  and  the  defendant  has  no  de- 
fense but  sets  up  a  counterclaim  of  equal  or  greater  amount, 
the  court  cannot  entertain  the  counterclaim,  however  ob- 
vious its  validity  may  be;  the  reason  being  that  a  counter- 
claim is  a  claim  against  a  man  of  another  nationality  and 
must  be  tried  by  the  court,  and  according  to  the  laws  of 
that  nationality.^ 

'  For.  Rel.,  1894,  pp.  100-108. 
*  Ibid.,  p.  115. 

'  A.  M.  Latter  on  "  The  Government  of  the  Foreigners  in  China,"  19 
Law  Quarterly  Review  (1903),  316-325. 


212  THE  STATUS  OF  ALIENS  IN  CHINA  [334 

§  6.  The  Jurisdiction  as  to  criminal  matters  is  punitive,  not 

preventive 

Since  very  early  times  opinion  has  been  divided  as  to  the 
precise  scope  of  the  clause,  now  found  in  the  treaties  of  all 
nations  maintaining  relations  with  China,  which  confers 
upon  these  nations  extraterritorial  jurisdiction  over  their 
own  subjects  in  China  in  criminal  and  penal  cases.  As  may 
be  surmised,  the  point  of  dispute  centres  about  the  meaning 
and  purport  of  the  common  clause  which  provides  that  sub- 
jects of  a  given  treaty  power,  who  may  commit  any  crime 
in  China  shall  be  tried  and  punished  by  the  Consul,  or  other 
public  functionary  authorized  thereto,  according  to  the  laws 
of  that  power.  It  will  be  impracticable  to  review  here  the 
arguments  advanced  in  support  of  one  side  or  the  other, 
but  the  whole  controversy  may  be  summarized  by  saying 
that  it  lies  between  a  too  narrow  and  a  too  broad  construc- 
tion of  this  important  provision. 

The  question  is  undoubtedly  fraught  with  difficulties  un- 
foreseen by  the  early  western  negotiators.  Their  attitude, 
particularly  that  of  the  staunch  advocate  of  extraterritor- 
iality in  China,  the  negotiator  of  the  American  treaty  of 
1844/  was  simple  and  not  unintelligible.  They  were  famil- 
iar, through  learning  or  experience,  with  the  practice  of 
Christian  foreigners  in  Mohammedan  countries,  where  re- 
ligion constitutes  the  sole  test  of  a  person's  liberty  and 
rights;  and  when  they  saw  that  China,  like  Turkey,  for  in- 
stance, was  not  a  Christian  state,  they  naturally  inferred 
that  she  could  not  have  the  same  scruples  of  truth,  faith  and 
humanity  which  the  nations  of  Christendom  in  their  times 
were  believed  to  observe.  Coupled  with  this  want  of  con- 
fidence in  China,  based  on  the  difference  in  religion,  was 
their  natural  lack  of  acquaintance  with,  hence  appreciation 

1  See  supra,  chap,  ix,  sec.  9. 


335]  LIMITATION'S  OF  JURISDICTION  213 

of,  the  real  character  of  the  Chinese  institutions,  law,  and 
civilization ;  and  the  two  deficiencies  combined  produced  on 
their  minds  the  resultant  unsympathetic  attitude  toward  the 
local  systems  of  government  and  administration.     This  ab- 
sence of   sympathy   naturally  approached  contempt  when 
they  observed,  according  to  their  own  lights,  the  crude  pro- 
cedure followed  in  the  trial  of  criminal  cases,  the  unpropor- 
tionate  punishments  meted  out  to  the  guilty,  and  the  cruel 
manner  in  which  sentences  of  death  or  imprisonment  or 
corporal  punishment  were  executed.     In  a  word,  their  un- 
derstanding of  China  was  that  she  was  not  a  country,  to 
use  the  phrase  of  an  English  jurist,  within  "  the  circle  of 
law-governed  nations."     If  they  could  have  done  it  they 
perhaps  would  have  preferred  to  have  nothing  to  do  wath 
such  a  country.     But  the  bait  of  a  lucrative  trade  was  too 
tempting  for  their  own  nations  to  resist,  and  therefore  they 
were  obliged  to  find  some  way  in  which  their  commercial 
aspirations  might  be  attained  without  at  the  same  time  suf- 
fering from  the  otherwise  unavoidable  consequences  of  their 
presence  in  the  Chinese  territory,  and  of  their  contact  with 
the  Chinese  people.     Hence  originated  in  their  minds  the 
idea  of  introducing  the  artificial  system  of  extraterritor- 
iality into  China.    That  the  early  negotiators  intended  that 
the  device  thus  initiated  should  be  of  limited  application  in 
a  small  number  of  seaports  seems  to  be  a  more  reasonable 
view  than  that  it  should  subsequently  be  extended  to  all 
parts  of  the  Empire.     Under  the  circumstances  it  would 
have  been  little  short  of  a  marvellous  exhibition  of  pro- 
phetic power  to  foresee  that  the  extraterritorial  jurisdiction 
would  have  to  be  exercised  on  a  great  scale,  such  as  it  is, 
and  that  it  would  withal  bring  forth  complicating  ques- 
tions, such  as  it  has,  as  to  its  extent  and  scope. 

If  the  early  negotiators  thought  of  the  question  of  the 
scope  of  jurisdiction  at  all,  they  probably  took  this  view: 


214  THE  STATUS  OF  ALIENS  IN  CHINA  [336 

that  the  territorial  sovereign  might  enact  any  laws  he  was 
pleased  to,  but  the  enforcement  of  them,  so  far  as  their  own 
nationals  were  concerned,  would  have  to  be  effected  by  their 
own  authorities.  This  attitude  was  in  entire  accord  with, 
and  eminently  conducive  to,  their  desire  to  secure  for  their 
nationals  both  the  privilege  to  trade  and  a  way  to  escape  the 
crude  and  cruel  forms  of  procedure,  punishment,  and  execu- 
tion of  sentences  in  the  Chinese  system  of  law.  It  would  be 
unreasonable,  on  the  other  hand,  to  attribute  to  these  early 
sponsors  of  extraterritoriality  in  China  an  intention  to 
W'ithdraw  their  countrymen  from  all  allegiance  to  Chinese 
laws,  and  to  constitute  them  on  Chinese  territory,  so  to 
speak,  into  petty  states,  sovereign  and  independent  with 
reference  to  the  Emperor  of  China.  Such  an  intention 
could  not  be  reconciled  with  their  purpose  to  establish  for- 
eign trade  in  China  on  a  permanent  footing ;  rather  it  would 
have  defeated  that  purpose.  As  has  been  seen  in  Chapter  6, 
China,  during  the  pre-conventional  period,  always  claimed 
and  generally  exercised  the  right  to  regulate  trade  within 
her  territory ;  could  it  then  be  reasonably  expected  by  the 
early  negotiators  that  when  she  entered  into  treaty  rela- 
tions with  their  respective  states,  granting  them  extrater- 
ritorial jurisdiction  over  their  subjects,  she  was  willing  en- 
tirely to  forego  the  right  of  regulation  where  the  trade  af- 
fected foreign  subjects  or  interests? 

It  is  equally  improbable  that  the  early  western  negotiators 
intended  to  plant  in  China  an  extraterritorial  jurisdiction 
which  should  go  beyond  the  scope  of  that  which  then  pre- 
vailed in  Turkey,  the  home  of  judicial  extraterritoriality. 
There  it  was  only  in  cases  between  themselves  that  the 
Franks,  or  Christian  foreigners,  were  entitled  to  be  judged 
by  their  respective  ministers  and  consuls.  Where  natives 
were  involved,  whether  as  plaintiffs  or  defendants,  juris- 
diction was  reserved  in  the  old  capitulations  to  the  local 


'^■^y-j  LIMITATIONS  OF  JURISDICTION  215 

tribunals.  In  crimes  and  offenses  committed  by  foreigners 
against  natives,  as  well  as  in  civil  causes  between  natives 
and  foreigners,  Turkish  courts,  until  very  recently,  had  ex- 
clusive cognizance,  with  the  guarantee  that  a  consul  or  con- 
sular dragoman  of  the  foreigner's  nation  was  present.  In- 
deed, when  the  United  States  Minister  at  Constantinople 
in  1868  contested  under  the  fourth  article  of  the  treaty  of 
May  7,  1830,  between  the  two  countries,  the  right  of  the 
Ottoman  authorities  to  take  jurisdiction  over  two  American 
citizens  whom  they  had  arrested  on  a  charge  of  an  offense 
committed  in  Syria,  the  Porte  replied  that  the  claim  was 
based  upon  an  erroneous  translation  of  the  article  in  ques- 
tion and  that  the  words  "  they  (American  citizens  com- 
mitting an  offense  in  the  Ottoman  Empire)  shall  be  tried 
by  their  minister  or  consul,  and  punished  according  to  their 
offense,"  were  not  to  be  found  in  the  Turkish  text.  Other 
cases,  notably  that  of  Stephen  P.  Mirzan,  in  1879,  have 
since  arisen  and  the  United  States  representatives  have  ex- 
ercised jurisdiction  over  the  American  citizens  concerned, 
but  they  have  in  each  case  elicited  a  protest  from  the  Sub- 
lime Porte.  It  may  be  added  that  although  the  word  "  try  " 
is  used  in  the  eighth  article  of  the  Belgian  treaty  of  1838 
with  Turkey,  no  case  has  as  yet  arisen  under  it.^ 

Furthermore,  the  language  of  the  clause  in  question 
seems  to  show  that  the  western  negotiators,  in  employing 
it,  did  not  entertain  such  extravagant  notions  as  have  been 
attributed  to  them.  Take,  for  an  example,  the  specific 
clause  in  the  American  treaty  of  1844,  which  introduced  the 
system  of  extraterritoriality  into  China.  The  phrase,  "citi- 
zens of  the  United  States  who  may  commit  any  crime  in 
China,"  necessarily  implies  that  there  were  laws  already  in 
force  in  China  defining  crimes,  that  is,  describing  certain 

'  Van    Dyck,    Capitulations    of    the    Ottoman    Empire    (Washington, 
1881),  pp.  19-22,  28-29. 


2i6  THE  STATUS  OF  ALIENS  IN  CHINA  [338 

acts  to  be  prohibited,  and  prescribing  penalties  for  them  and 
the  manner  of  enforcing  them.  The  words  following  the 
phrase,  namely,  ''  shall  be  subject  to  be  tried  and  punished 
only  by  the  Consul  or  other  public  functionary  of  the 
United  States  thereto  authorized  according  to  the  laws  of 
the  United  States,"  obviously  mean,  on  the  one  hand,  to 
exempt  American  offenders  from  the  penalties  and  the 
manner  of  enforcing  them,  prescribed  in  the  Chinese  law, 
and  on  the  other,  to  subject  them  to  such  mode  of  trial  and 
such  penalties  as  are  provided  by  the  laws  of  their  own 
nation  for  the  corresponding  crime. 

As  to  that  species  of  local  laws  which  are  generally  desig- 
nated by  the  name  of  police  regulations,  not  even  diplomatic 
officers  nor  vessels-of-war  are  exempt  from  them.  They, 
like  aliens  of  non-official  character,  are  also  required  to 
observe  them.  It  would  therefore  seem  extravagant  to 
contend  that  foreigners  in  China  are  under  no  obligation  to 
respect  such  laws  enacted  by  the  territorial  sovereign.^ 

In  short,  the  consideration  which  must  have  animated 
the  minds  of  the  early  negotiators  in  seeking  from  China 
the  privilege  of  extraterritoriality ;  the  usages  then  observed 
in  the  Ottoman  Empire,  the  birth-place  of  the  extraterri- 
torial jurisdiction;  the  language  of  the  provisions  in  the 
treaties  between  China  and  foreign  states  conferring  this 
privilege  on  their  nationals;  and  the  recognized  limitations 
on  immunities  accorded  to  diplomatic  officers  and  public 
vessels  all  seem,  in  a  fair  view,  to  support  the  interpreta- 
tion that  the  jurisdiction  of  the  treaty  powers  over  their 
citizens  or  subjects  in  China,  is,  as  respects  crimes  and  of- 
fenses, punitive  and  not  preventive.^     Extraterritoriality  in 

'  See  Moore,  lutein.  Laiv  Digest,  sees.  254,  255. 

*  Secretary  of  State  Bayard,  in  his  despatch  to  Mr.  Young,  Minister 
to   China,    March    11,    1885,  observes:    "In    China  .  .  .  foreign  powers 


339]  LIMITATIONS  OF  JURISDICTION  217 

China  as  well  as  elsewhere  is  but  a  metaphorical  term.  It 
does  not  denote  that  aliens  who  are  entitled  to  enjoy  this 
privilege,  though  they  remain  in  the  territory,  are  actually 
to  be  held  as  though  they  were  outside  of  it.  To  be  precise, 
the  term  implies  only  exemption  from  process  of  the  local 
courts,  not  exemption  from  obedience  to  the  local  laws. 

With  reference  to  the  treaty  powers  themselves,  it  may 
be  said  that  extraterritoriality  entitles  them  to  exercise  so 
much  authority  over  their  nationals  in  China  as  is  necessary 
to  enforce  effectively,  by  judicial  methods,  the  lavv^s  declared 
to  be  in  force  by  the  Emperor  of  China.  What  the  content 
of  this  authority  consists  of,  may  be  easily  comprehended; 
it  includes  only  the  power  to  regulate,  for  the  purpose  of 
enforcing  territorial  laws  upon  their  own  subjects  or  citi- 
zens in  China,  questions  concerning  the  machinery  of  their 
courts,  the  law  of  procedure,  the  mode  of  trial,  the  rules  of 
evidence,  the  incidence  of  responsibility,  the  measure,  de- 
gree, kind  and  manner  of  punishment,  and  other  kindred 
matters.^  The  sovereign  power  of  legislation,  on  the  other 
hand,  remains  in  the  Emperor  of  China  unimpaired.-  He  may 

have  an  extraterritorial  jurisdiction,  conferred  by  treaty.  This  juris- 
diction is  in  no  wise  arbitrary  but  limited  by  laws,  and  is  not  pre- 
ventive, but  punitory."    For.  Rel.,  1885,  p.  160. 

'  "  The  foreigner  in  China  is  amenable  only  to  his  own  courts  as  far 
as  mode  of  trial  extends  and  measure  of  punishment."  Mr.  Denby, 
Minister  to  China,  to  Mr.  Bayard,  Sec.  of  State,  Oct.  9,  1886.  For. 
Rel.,  1886,  p.  96. 

^  Mr.  Seward,  United  States  Minister  to  China,  in  his  despatch  of 
March  16,  1880,  to  Mr.  Evarts,  Secretary  of  State,  observes: 

"  My  own  view  is  that  we  cannot  deny  the  right  of  the  Chinese 
Government  to  make  rules  and  regulations  affecting  all  matters  within 
their  sovereignty,  but  that  we  may  scrutinize  all  rules  and  regulations 
made  or  proposed  by  them  which  affect  our  nationals,  and  object  to 
them,  if  we  find  them  in  contravention  of  treaty  stipulations,  or  suggest 
their  withdrawal  or  modification  if  they  appear  burdensome.  .  .  . 

"  The  question  of  principle  involved  is  an  important  one,  and  has 


2i8  THE  STATUS  OF  ALIENS  IN  CHINA  [340 

make  any  law  that  he  sees  fit  for  the  purpose  of  maintain- 
ing the  pubHc  peace  and  order,  of  preserving  the  decency 
and  morals  of  the  people,  of  promoting  the  welfare  of  his 
country,  or  for  any  other  legitimate  purpose.  He  may,  for 
instance,  lay  a  property  tax  on  all  property  holders  in  his 
dominions  for  the  purpose  of  raising  revenue;  or,  as  was 
suggested  in  the  Tsungli-Yamen's  circular  note  to  the 
powers,  March,  1878,^  close  a  street  to  public  passage.  All 
these  laws  have  a  binding  effect  throughout  the  territory  to 
which  they  are  intended  to  apply,  and  the  Chinese  authori- 
ties are  under  obligation  to  administer  them  to  all  persons 
within  their  scope.  They  may  collect  from  a  foreign  prop- 
erty-owner his  share  of  tax,  and  may  prevent  any  foreigner 
from  traversing  the  closed  street.  Only  if  the  foreign  prop- 
erty-owner refuses  to  pay  his  tax,  the  Chinese  authorities 
cannot  compel  him  to  do  it  except  by  entering  a  complaint  in 
the  proper  consular  court  of  his  nation :  and  if  the  foreign 
pedestrian  persists  in  violating  the  law  prohibiting  passage 
through  the  specified  street,  the  Chinese  authorities  cannot 
chastise  him  for  defiance  but  must  send  him  to  the  con- 
sular court  of  his  nation  for  such  punishment  as  the  laws 
of  his  nation  may  have  provided  for  such  a  case. 

Nor  is  it  difficult  to  see  that  China  must  of  necessity  be 
the  sole  judge  of  what  laws  are  desirable  or  needed  for  her 
country,  regardless  of  persons.  For  if  the  various  treaty- 
powers  were  to  transcend  the  limits  of  their  power  sanc- 
tioned by  treaty  by  making  substantive  laws,  as  distin- 
guished from  adjective  laws,  for  their  subjects  in  China,  not 

occasioned  a  great  deal  of  discussion  and  unpleasant  feeling  both  in 
this  Empire  and  in  Japan.  I  cannot  doubt,  however,  the  correctness 
of  my  own  view.  I  have  acted  upon  it  ever  since  my  arrival  in  this 
capital,  and  shall  continue  to  do  so  unless  instructed  to  the  contrary 
by  yourself."  for.  Rcl.,  1880,  p.  239. 
^  For.  Rel.,  1880,  p.  177. 


341  ]  LIMITATIONS  OF  JURISDICTION  219 

only  would  such  assumption  of  power  be  a  confounding  of 
jurisdiction  with  sovereignty,  but  the  laws  on  a  given  sub- 
ject made  by  the  different  treaty-powers  having  as  they  do 
different  interests  to  subserve,  might  be  so  conflicting  and 
even  contradictory  as  to  destroy  their  practical  value,  on 
the  one  hand,  and  on  the  other,  to  paralyze  China's  efforts 
to  promote  her  own  welfare,  and  even  endanger  her  state 
life. 

As  a  matter  of  fact  there  is,  in  practice,  no  question  as 
to  the  obligation  on  the  part  of  the  subjects  of  treaty- 
powers  to  observe  Chinese  laws  on  all  matters  where  such 
laws  have  been,  so  to  speak,  adopted  by  the  laws  of  these 
powers,  so  that  what  is  punishable  under  the  former  is  also 
punishable  under  the  latter.  The  question  arises  where  the 
doing  of  a  certain  act  by  any  person  in  China  is  prohibited 
or  required  by  a  Chinese  law  under  penalty  of  punishment, 
but  not  so  prohibited  or  required  generally  or  specifically 
by  the  laws  of  the  treaty-powers  as  respects  their  own  sub- 
jects in  China.  In  such  a  case  what  must  be  done  by  the 
powers  concerned  and  their  subjects  in  China?  The  answer 
seems  obvious  from  what  has  already  been  said.  The  for- 
eign subjects,  by  reason  of  the  protection  which  they  receive 
from  the  Emperor  of  China  while  residing  in  his  territory, 
are  obliged  to  observe  his  laws,  whatever  they  may  be,  and 
the  treaty-powers,  by  virtue  of  their  treaty  right  of  exclusive 
control  over  the  persons  of  their  subjects  in  China,  are  under 
an  implied  obligation  to  enforce  the  laws  upon  such  subjects 
by  measures  adequate  for  the  purpose.^    For  to  disclaim  the 

'  In  liis  circular  to  British  consuls  in  China,  November  22,  1844,  Sir 
J.  F.  Davis,  Chief  -Superintendent  of  British  Trades,  sta'es  that  the 
Christian  Powers,  in  taking  advantage  of  the  concession  of  extra- 
territoriality made  by  the  Emperor  of  China,  "  are  bound  to  provide  as 
far  as  possible  against  any  injurious  effects  resulting  from  it  to  the 
territorial  Sovereign,"  and  that  "as  the  maintenance  of  order  and  the 
repression   and  punishment  of  crime  are  objects  of  the  greatest  im- 


220  THE  STATUS  OF  ALIENS  IN  CHINA  [342 

duty  of  foreigners  in  China  to  observe  the  territorial  laws 
would  be,  to  say  the  least,  an  admission  that  there  exists  a 
right  without  a  corresponding  obligation ;  while  to  deny 
the  obligation  of  the  treaty-powers  to  enforce  upon  their 
subjects  in  China  all  Chinese  laws,  except  those  from  which 
foreign  subjects  are  exempted  by  specific  and  express  provi- 
sions in  the  treaties,  would  be  tantamount  to  asserting  that 
the  interests  of  the  few  subjects  of  a  treaty-power  in  China 
should  override  the  interests  of  the  entire  Chinese  nation, 

portance  in  every  civilized  community,  it  is  obligatory  upon  Christian 
Powers  ...  to  provide  as  far  as  possible  for  these  great  ends." — Pari. 
Papers,  1847,  xxxx,  China,  no.  795,  p.  38. 

Mr.  Seward,  the  American  Minister  at  Peking,  makes  the  following 
significant  observation  in  his  Memorandum  of  October  4,  1879: 

"  In  actual  practice  it  comes  to  this :  That  foreigners  are  bound  to 
observe  the  laws  of  the  Empire  so  far  as  they  conform  to  the  laws  of 
their  own  country.  It  is  an  offense  against  China  to  commit  a  murder 
on  Chinese  soil  .  .  .  The  person  so  offending  may  be  arrested  by  the 
Chinese,  and  they  have  the  right  to  demand  that  he  shall  be  tried  and 
punished:  in  the  words  of  the  treaty,  'impartial  justice  shall  be  done 
in  the  premises  '. 

"  This  principle  may  be  carried  further,  and  it  may  be  said  that  we 
are  bound  to  provide  remedies  in  cases  where  the  Chinese  Government 
declares  unlawful  certain  acts  which  are  not  in  themselves  criminal 
but  which  become  so  in  consequence  of  enactments  made  for  the 
public  advantage.  It  cannot  be  said  that  throwing  ballast  overboard  in  a 
stream  is  in  itself  an  offense  against  China,  but  the  throwing  overboard 
of  a  ballast  in  a  stream  when  it  is  prohibited  by  Chinese  law,  must  be 
considered  an  improper  act,  an  offense  against  the  nation,  and,  as  such, 
we  are  under  obligation  to  provide  a  remedy,  either  by  acknowledging 
the  validity  of  the  law,  adopting  it,  so  to  speak,  for  ourselves,  or  by 
enacting  a  law  of  our  own  to  meet  the  case." — On  this  point,  see  For. 
Rel.,  1880,  p.  146. 

The  British  Minister  in  Peking  is  now  empowered  by  Article  155  of 
the  China  and  Corea  Order  in  Council,  1904,  to  make  regulations  hav- 
ing the  force  of  law,  among  others,  for  the  purpose  of  "  securing  the 
observance  of  any  treaty  for  the  time  being  in  force  relating  to  any 
place  or  of  any  native  law  or  custom,  whether  relating  to  trade,  com- 
merce, revenue,  or  any  other  matter." — Hertslet's  China  Treaties,  ii, 
p.  884. 


343]  LIMITATIONS  OF  JURISDICTION  221 

and  that  the  treaty-powers  should  be  supreme  judges  of 
what  the  laws  of  China  should  be. 

Suppose,  for  an  example,  China  enacted  a  law  prohibit- 
ing public  derision  of  any  religion  in  China;  now  if  foreign 
subjects  in  China  were  not  under  obligation  to  observe 
Chinese  laws,  the  over-zealous  Christian  missionaries  would 
more  often  than  not  pay  no  regard  whatever  to  the  enact- 
ment, but  would  continue  to  abuse  their  freedom  of  preach- 
ing the  gospel  by  denouncing  all  non-Christian  religions ; 
although  when  their  indiscrete  utterances  should  bring 
down  upon  themselves  an  outbreak  of  popular  indignation 
and  violence,  tliey  would  at  once  charge  the  local  authori- 
ties with  a  failure  to  protect  them  efficiently.^  Suppose, 
again,  China  enacted  a  sanitary  law  for  observance  by  all 
persons  throughout  her  dominions ;  now  if  the  treaty- 
powers  were  at  liberty  to  determine  whether  they  would  en- 
force them  upon  their  subjects  in  China,  the  result  might 
easily  be  foreseen.  One  power  might  consider  the  law  to  be 
too  exacting,  another,  unnecessary  at  all.  Under  such  cir- 
cumstances how  could  the  law  be  enforced  with  the  good 
effect  which  it  was  intended  otherwise  to  produce?  Sup- 
pose, once  more,  a  Chinese  law^  was  enacted  with  a  view  to 
the  maintenance  of  the  public  peace,  prohibiting  on  Chinese 
territory  the  fighting  of  duels  with  dangerous  weapons;  if 
the  treaty-powers  were  free  to  determine  for  themselves 
whether  or  not  they  would  enforce  it  upon  their  own  subjects 
in  China,  it  is  possible  that  some  of  them,  which  still  con- 
sider such  fighting  as  a  manly  art  or  an  honorable  way  of 
settling  private  differences,  would  not  make  any  effort  to 
enforce  it. 

^  In  fact  public  derision  by  a  British  subject  of  any  religion  estab- 
lished or  observed  within  China  is  now  punishable  by  imprisonment 
or  fine  or  both  under  Article  76  of  the  China  and  Corea  Order  in 
Council.  1904. — Hertslet's  China  Treaties,  ii,  p.  862. 


222  THE  STATUS  OF  ALIENS  IN  CHINA  [344 

There  is  another  view  which  serves  to  bring  out  more 
clearly  the  obligation  of  foreign  governments  having  rela- 
tions with  China,  to  compel  their  subjects  in  China  to  ob- 
serve Chinese  laws.  These  governments  may  be  considered 
the  chosen  agents  of  the  Chinese  Emperor  to  apply  his 
laws  to  specihc  groups  of  persons  in  his  dominions,  namely, 
their  respective  subjects  in  China;  for  whatever  jurisdiction 
they  exercise  over  their  subjects  in  China,  they  do  so  only 
by  virtue  of  the  consent  of  the  Emperor  expressed  in  treat- 
ies. In  appointing  them  to  this  task  the  Emperor  also  in- 
vests them  with  exclusive  authority  to  select  for  themselves 
the  manner  and  means  of  performing  that  task,  and  at  the 
same  time  pledges  himself  not  to  revoke  this  authority  with- 
out their  consent.  Now  why  does  the  Emperor  do  this? 
What  is  the  principal  consideration  for  this  valuable  con- 
cession of  powder?  There  can  be  no  doubt  that  he  assigns 
away  this  power  in  trust,  with  the  tacit  understanding  that 
it  will  be  exercised  in  good  faith  for  the  purpose  for  which 
it  is  conceded,  which  is  the  effective  enforcement  of  his  laws 
against  those  persons  over  which  the  power  extends.  It  is 
equally  certain  that  in  accepting  the  concession  of  power, 
which  goes  with  the  task,  foreign  nations  understand  it  to 
be  a  legacy  of  trust  and  that  they  are  expected  to  discharge 
that  trust  while  enjoying  the  power  thus  conferred  upon 
them.  For  if  there  were  no  such  obligation  implied  in  the 
concession  there  would  be  no  reasonable  ground  on  which 
the  concession  could  be  upheld ;  it  would,  on  the  contrary, 
amount  to  this  absurdity :  that  the  Emperor  made  the  con- 
cession for  the  purpose  of  rendering  himself  unable  in  the 
future  to  prevent  foreign  subjects  in  his  territory  from 
violating  his  law  with  impunity,  and  that  foreign  states, 
under  the  pretense  of  protecting  their  sul)jects  from  the 
harshness  and  cruelties  of  the  Chinese  law,  accepted  the  con- 
cession in  order  that  the  Emperor  might  be  so  disabled, 


245]  LIMITATIONS  OF  JURISDICTION  223 

and  their  subjects  might,   by  violating  his   laws   without 
check,  bring  harm  to  his  nation.^ 

*  The  view  that  the  concession  of  extraterritoriality  by  the  territorial 
sovereign  or  foreign  powers  is  essentially  an  application  of  the  theory 
of  agency  in  private  law  and  has  been  suggested  or  intimated  by  sev- 
eral eminent  authorites. 

Mr.  Fish,  Secretary  of  State,  in  his  instructions  to  Mr.  DeLong, 
December  20,  1870,  states : 

"  A  report  made  to  Congress  by  my  predecessor,  Mr.  Seward,  shows 
that  it  has  been  the  habit  of  this  Department  to  regard  the  judicial 
power  of  our  Consular  Oflicers  in  Japan  as  resting  upon  the  assent  of 
the  government  of  the  Kingdom,  whether  expressed  by  formal  con- 
vention or  by  tacit  acquiescence  in  the  notorious  practice  of  the  Con- 
sular Courts.  In  other  words,  they  were  esteemed  somewhat  in  the 
same  light  as  they  would  have  been  if  they  were  constituted  by  the 
Mikado  with  American  citizens  as  judges,  and  with  all  the  authority 
with  which  a  Japanese  tribunal  is  invested  in  respect  to  the  native  sub- 
jects of  Japan,  to  the  extent  that  our  Government  will  admit  a  juris- 
diction understood  to  be  extremely  arbitrary.  They  were,  so  to  speak, 
the  agents  of  a  despotism,  only  restrained  by  such  safeguards  as  our 
own  Government  may  interpose  for  the  protection  of  citizens  who 
come  within  its  sway." — Cited  in  Scidmore,  United  States  Courts  in 
Japan,  p.  226. 

Professor  John  W.  Burgess,  of  Columbia  University,  after  reading 
the  case  of  Ross  (140  U.  S.  453),  makes  this  observation: 

"  It  seems  to  me  evident  .  .  .  that  the  principle  here  involved  is 
simply  that  of  an  immunity  granted  by  the  territorial  sovereign  of 
Japan  to  the  citizens  of  the  United  States  while  sojourning  in  Japan. 
It  is  probably  true  that  this  practice  of  consular  jurisdiction  in  foreign 
lands  is  a  relic  of  the  medieval  idea  that  law  is  personal — that  is, 
racial  or  national — and  follows  the  individual  wherever  he  may  go. 
But  the  modern  principle  is  that  law  is  territorial,  and  that  all  de- 
partures from  this  principle  are  the  exceptions  which  make  the  rule 
manifest.  We  must,  therefore,  reconcile  the  existence  of  these  ex- 
ceptional immunities  with  the  principle  of  territorial  sovereignty;  and 
this  can  be  done  only  by  regarding  all  authority  exercised  within  the 
sphere  of  the  immunity  as  proceeding  from,  and  administered  for, 
the  territorial  sovereign,  but  administered  by  the  countrymen  of  the 
party  or  parties  concerned,  and  administered  according  to  such 
methods  as  they  or  their  home  government  may  devise." — 14  Political 
Science  Quarterly  (1859),  9. 

x^rofessor  Charles  H.  Huberich,  of  Stanford  University,  with 
reference  to  the  case  In  re  Tootals'  Trust   (33  Ch.  Div.  532),  states: 

"  It    is   quite   immaterial    that   the   Chinese    law   provides   that   per- 


224  '^^^^  STATUS  OF  ALIENS  IN  CHINA  [346 

What  measures  are  to  be  adopted,  what  methods  are  to  be 
pursued,  what  agents  are  to  be  authorized  for  carrying  out 
the  purpose — these  questions  must,  under  the  treaties,  be  left 
to  the  discretion  of  the  foreign  powers.  They  may  pro- 
ceed against  their  subjects  violating  Chinese  laws  in  the 
form  of  a  criminal  prosecution  or  in  that  of  a  civil  suit  for 
damages;  they  may  by  law  prescribe  fine  or  imprisonment 
or  both,  as  penalty  for  a  breach  of  such  laws;  in  a  word, 
they  may  do  anything  which  is  necessary  to  compel  their 
subjects  to  observe  the  territorial  laws.  They  may  even  so 
exercise  this  discretionary  power  vested  in  them  by  treaty 

sons  of  British  nationality  shall  be  governed  by  the  rules  of  law 
prevailing  in  England,  or  by  such  laws  as  may  be  enacted  and  made 
applicable  to  them  by  the  English  authorities.  The  English  law  is 
operative  in  Shanghai  as  to  certain  persons  and  certain  transactions 
only  because  it  is  permitted  and  adopted  by  the  territorial  sover- 
eign."— "  Domicile  in  Countries  Granting  Extraterritorial  Privileges 
to  Foreigners,"  24  Law  Quarterly  Review  (1908),  440-444. 

Again : 

"In  lespect  of  all  matters  which  private  international  law  refers 
to  the  law  of  the  domicile  he  would  be  governed  by  the  Chinese 
law,  the  law  of  the  territorial  sovereign.  The  law  to  which  he 
would  be  subject  would  be  none  the  less  the  law  of  China  because 
it  provides  that  persons  of  British  and  American  nationality  shall 
be  governed  by  such  laws  as  their  respective  countries  may  enact 
to  govern  their  nationals  in  China.  The  Legislative  power  of  China 
extends  to  all  persons  and  things  within  the  territorial  limits  of  the 
Empire ;  the  British  Parliament  in  legislating  for  British  nationals 
in  China  acts  merely  under  a  delegation  of  authority.  Such  laws 
are  operative  within  the  territory  of  China  only  because  China 
recognizes  them  as  part  of  the  law  of  the  land." 

Justice  Albert  M.  Spear,  delivering  the  opinion  of  the  Supreme 
Judicial  Court  of  Maine  in  the  case  of  Mather  v.  Cunningham 
makes  this  dictum : 

"  Although  the  Emperor  had  suspended  some  of  the  Chinese  laws 
and  permitted  the  extension  of  American  law  to  the  territory,  yet 
the  source  of  the  law  was  the  Emperor,  who  had  never  released  his 
sovereignty  over  the  soil  Cof  Shanghai)  :" — 74  Abl.  Rep.  (1909), 
809,  814. 


347]  LIMITATIONS  OF  JURISDICTION  225 

as  to  determine  for  themselves  in  a  case  of  breach  of 
Chinese  law,  by  one  of  their  subjects,  which  of  them  shall 
be  held  responsible  for  the  act  of  breach.  Take  an  example 
for  illustration.  In  his  memorandum  on  the  extraterri- 
torial jurisdiction,  October  4,  1879,^  Mr.  Seward,  United 
States  Minister  to  China,  observes  that  the  Chinese  con- 
ceptions of  right  and  obligation  are  different  from  those 
prevailing  in  the  West;  that  under  Chinese  law  a  parent 
may  be  punished,  not  only  for  the  offense  of  his  child,  but 
also  because  he  has  not  so  instructed  him  that  he  would  not 
offend ;  that  a  person  who  has  lost  property  by  theft  may  be 
punished  for  not  having  kept  such  watch  over  his  property 
as  to  prevent  its  loss ;  and  he  concludes :  "  It  would  be  idle 
to  say  that  in  such  and  similar  cases  foreigners  offend 
against  the  native  law,  and  that  it  is  the  duty  of  the  foreign 
court  to  punish  them."  This  objection  seems  unnecessary 
when  it  is  pointed  out  that  the  question  involved  in  the  two 
supposed  cases,  is  merely  one  of  the  incidents  of  respon- 
sibility for  a  given  act  of  crime  or  offense.  The  obvious 
intent  of  the  Chinese  law  in  the  one  case,  is  to  prevent  the 
commission  of  offenses  by  children  and  in  the  other,  is  to 
prevent  thefts.  In  such  cases  the  treaty-powers  are  not 
obliged  to  punish  the  persons  designated  in  the  Chinese 
law ;  they  do  not  have  to  punish  the  parent  for  the  offense 
of  his  child  or  for  not  instructing  him  to  abstain  from  com- 
mitting it,  nor  do  they  have  to  punish  the  owner  for  having 
had  his  property  stolen,  if  they  believe  that,  by  reason  of 
the  peculiar  nature  and  the  different  frame  of  mind  of  their 
own  people,  the  mere  punishment  of  the  child  committing 
the  offense  would  be  sufficient  to  deter  him,  and  others  of 
his  age,  and  that  the  mere  punishment  of  the  thief  would  be 
sufficient  to  discourage  stealing  in  the  future.     China's  su- 

^  For.   Rel..   1880,  p.    146. 


226  THE  STATUS  OF  ALIENS  IN  CHINA  [348 

preme  interest  in  such  cases  is  that  offending  by  children 
and  stealing  property  shall  not  be  committed  on  her  terri- 
tory again,  by  whomsoever  it  may  be.  In  other  words,  the 
treaty-powers  are  under  obligations  to  enforce  upon  their 
subjects  in  China  every  territorial  law  in  force,  so  that  the 
intent  and  purpose  of  the  law  shall  not  be  defeated  with 
reference  to  such  subjects;  as  to  the  manner  and  means  of 
compelling  such  observance  by  their  subjects,  the  powers 
are  by  treaty  entitled  to  exercise  their  own  discretion.^ 

^  This  question  of  the  extent  and  limitations  of  extraterritorial  juris- 
diction was  once  raised  in  Japan,  also,  in  connection  with  the  hunt- 
ing regulations  which  the  Japanese  Government  had  enacled  in  1873 
and  sought  to  have  enforced  upon  all  persons  within  Japanese  ter- 
ritory. The  basis  of  the  discussion  between  Japan  and  the  United 
States  was  the  clause  in  Article  VI  of  the  treaty  concluded  be- 
tween the  two  states,  July  29,  1858  (superseded  on  July  17,  1899, 
when  the  treaty  of  November  22,  1894,  went  into  effect),  granting 
extraterritorial  jurisdiction  on  American  citizens  in  Japan.  The 
language  of  the  clause  relative  to  jurisdiction  in  criminal  cases  was 
similar  to  that  of  the  like  article  in  the  treaty  between  China  and 
the  United  States  concluded  in  the  same  year,  on  June  18.  The 
clause  provided: 

"Americans  committing  offenses  against  Japanese  shall  be  tried  in 
American  consular  courts,  and  when  guilty  shall  be  punished  according 
to  American  law.  Japanese  committing  offenses  against  Americans  shall 
be  tried  by  the  Japanese  authorities  and  punished  according  to  Japan- 
ese law.  The  consular  courts  shall  be  open  to  Japanese  creditors, 
to  enable  them  to  recover  their  just  claims  against  American  citi- 
zens, and  the  Japanese  courts  shall  in  like  manner  be  open  to  Amer- 
ican citizens  for  the  recovery  of  their  just  claims  against  Japanese." 
— Treaties  and  Conventions  concluded  between  the  United  States  of 
America  and  other  Powers,  1777-1887,  p.  601. 

The  views  of  the  United  States  Government  as  to  the  scope  of 
the  extraterritorial  jurisdiction  thus  conferred  on  its  citizens  in 
Japan  are  worth  quotation.  On  November  17,  1873,  Mr.  Bingham, 
American  Minister  to  Japan,  wrote  to  Mr.  Fish,  Secretary  of  State, 
as  in  the   following  language : 

"  I  have  the  honor,  in  reply  to  your  instruction  No.  5,  dated  the 
6th  September,  1873,  to  say  that,  having  examined,  as  therein  re- 
quested  the  'hunting  regulations'   referred  to,   1   am  of  opinion  that 


349]  LIMITATIONS  OF  JURISDICTION  227 

nothing  therein  contained,  when  construed  according  to  the  mani- 
fest intent  thereof,  conflicts  with  the  privileges  secured  by  treaty  to 
Am2rican  citizens  in  Japan.  It  may  not  be  improper  for  me  to  add 
in  support  of  this  opinion  that  I  find  nothing  in  the  treaty  of  1858 
which  in  anywise  denies  to  Japan  the  general  power  to  legislate 
over  all  persons  within  her  territorial  limits  by  general  laws,  while 
article  6  of  that  treaty  does,  by  necessary  implica'ion,  in  my  judg- 
ment, declare  that  the  government  of  Japan  may  by  law  define  and 
prohibit  offenses  within  her  territorial  limits,  and  that  no  person 
resident  therein  is  privileged  by  any  treaty  to  disregard  and  violate 
such  general  law.  It  is  no  answer  to  this  to  say  that  because  there 
are  certain  privileges  secured  by  treaty  to  the  government  and  citi- 
zens of  the  United  Sta'.es,  Japan  may  not,  therefore,  rightfully  ex- 
ercise general  legislative  power  over  all  persons  within  her  limits 
in  all  matters  not  expressly  provided  for  in  the  text  of  the  treaty. 
I  am  not  unmindful,  in  considering  this  question,  that  by  the  sixth 
article  of  the  treaty  Americans  committing  offenses  against  Japanese 
are  to  be  tried  in  American  consular  courts,  and,  when  guilty,  pun- 
ished according  to  American  law ;  but  I  submit  that  it  does  not 
result  from  this  that  the  government  of  Japan  may  not  by  general 
law  define  and  prohibit  all  crimes  and  misdemeanors  against  per- 
sons and  property  within  her  limits.  There  is  nothing  in  ihe  '  hunt- 
ing regulations '  that  I  can  discover  which  can  be  construed  to  deny 
to  American  citizens  the  right  to  be  tried  for  any  breaches  thereof 
before  the  American  consular  courts,  and  to  be  punished,  upon  con- 
viction, according  to  American  law.  The  penalties  prescribed  by 
the  regulations  can  only  be  held  to  apply  to  Japanese  subjects,  while 
the  prohibitions  therein  are  obligatory  upon  all.  This  seems  to  me 
to  be  their  inten%  and  so  I  understand  they  have  been  uniformly 
administered." — For.  Rel.,   1874,   p.  653. 

To  this  dispatch  Mr.  Fish,  on  January  7,  1874,  sent  the  following 
instructions : 

"Your  dispatch  No.  17,  of  the  17th  of  November,  1873,  in  rela- 
tion to  the  'hunting  regulations'  recently  promulgated  by  the  gov- 
ernment of  Japan,  has  been   received. 

"  Your  views  in  relation  to  the  character  of  these  local  laws  and 
regulations,  as  containing  nothing  which  conflicts  with  the  privi- 
leges secured  to  American  citizens  resident  in  that  country  under 
existing  treaty  regulations  between  the  United  States  and  Japan, 
are  entirely  in  accord  with  the  views  entertained  by  this  Department. 

"The  right  of  the  authorities  of  Japan  to  enact  and  promulgate 
laws  for  the  government,  security,  and  good  order  of  its  own 
people,  cannot,  of  course,  be  questioned  for  a  moment,  and  of  the 
character  and  efficiency  of  these  laws,   the  government  must   be  the 


228  THE  STATUS  OF  ALIENS  IN  CHINA  [350 

sole  judge.  Citizens  of  the  United  States  resident  in  Japan  are 
expected  and  required  to  observe  and  obey  such  laws  in  the  same 
manner  and  to  the  same  extent  that  the  like  obligations  rest  upon 
the  subjects  of  that  empire.  In  regard  to  the  enforcement  of  these 
laws,  and  the  imposition  of  penalties  for  their  infraction,  citizens 
of  the  United  States  have  secured  to  them,  by  the  provisions  of 
existing  treaties,  the  right  of  being  tried  in  the  consular  courts  of 
their  own  nation,  established  in  Japan,  and  according  to  the  mode 
prescribed  by  the  laws  of  the  United  States,  and  are  protected  from 
the  infliction  of  any  other  penalties  than  those  prescribed  or  war- 
ranted by  the  laws  of  their  own  country.  So  long  as  these  privi- 
leges are  recognized  and  respected  by  the  government  of  Japan, 
there  can  be  no  cause  of  complaint  on  the  part  of  this  government 
in  relation  to  the  promulgation  of  any  municipal  law  or  regulation 
which  the  legislative  authority  of  that  country  may  deem  necessary 
to  its  public  interest  and  welfare." — Ibid.,  p.  658. 

In  the  case  of  United  States  v.  Middleton,  decided  in  December, 
1875,  by  the  American  court  at  Kanagawa,  it  was  held  that  for- 
eigners in  Japan  were  exempt  from  obedience  to  Japanese  laws 
only  in  so  far  as  the  treaties  with  Japan  define  such  exemption; 
and  that  the  law  of  Japan  prohibiting  hunting  or  shooting  without 
license  was  binding  upon  citizens  of  the  United  States. — Scidmore, 
United  States  Courts  in  Japan,  p.  223. 


CHAPTER  XIII 

Ports  and  Foreign  Settlements 

§  I.  Treaty  Ports 

The  right  of  foreigners  to  reside  in  China  for  purposes 
of  trade  is  limited  to  certain  localities.  The  British  treaty 
of  August  29,  1842,  confers  this  right  upon  British  subjects 
in  Canton/  Amoy,  Foochow,  Ningpo  and  Shanghai.  The 
same  right  is  enjoyed  by  Americans  and  Frenchmen  under 
the  treaties  of  July  3,  1844,  and  October  24,  1844,  respect- 
ively. In  i860  new  ports  were  opened  to  foreign  com- 
merce in  pursuance  of  treaties  concluded  with  the  United 
States,  Russia,  France  and  Great  Britain;  and  since  then 
the  number  of  treaty  ports  has  been  greatly  increased — in- 
creased nearly  with  every  revision  of  the  old  treaties  and 
the  making  of  new  ones. 

At  any  of  the  treaty  ports  subjects  of  treaty  powers  are 
entitled  to  carry  on  their  mercantile  pursuits  "  without 
molestation  and  restraint."  For  this  purpose  ground  is  set 
apart  by  the  local  authorities  in  communication  with  the 
proper  consul ;  within  this  area  foreigners  are  allowed  to 
rent  buildings  and  lease  land  at  current  market  rates,  and 
to  build  or  open  on  property  thus  obtained  houses,  ware- 
houses,   churches,    cemeteries,^     hospitals,    asylums,    and 

^  This  city  was  not  immediately  opened  to  foreign  residence;  under 
the  convention  of  April  4,  1846,  and  the  agreement  of  April  6,  1847  the 
British  Government  formally  consented  to  the  delay. 

'  The  right  of  British  subjects  to  erect  churches  and  cemeteries  at 
Canton  was  expressly  granted  in  the  agreement  of  April  6,  1847. 
Article  17  of  the  American  trea'y  of  1844  and  article  22  of  the  French 
treaty  of  the  same  year  resemble  each  other  in  substance  except  that 
the  latter  adds  hospices  and  holes  to  the  list. 

351]  229 


230  THE  STATUS  OF  ALIENS  IN  CHINA  [352 

schools.  Article  3  of  the  American  treaty  of  October  8, 
1903,  greatly  enriches  the  content  of  the  privileges  which 
Americans  have  enjoyed  in  parts  of  China  open  to  foreign 
residence  and  commerce.    It  reads  : 

Citizens  of  the  United  States  may  frequent,  reside,  carry 
on  trade,  industries,  and  manufactures,  or  pursue  any  lawful 
avocation,  in  the  ports  or  localities  of  China  which  are  now 
open  or  may  hereafter  be  opened  to  foreign  residence  and 
trade ;  and  within  the  suitable  localities  at  those  places  which 
have  been  or  may  be  set  apart  for  the  use  and  occupation  of 
foreigners,  they  may  rent  or  purchase  houses,  places  of  busi- 
ness, and  other  buildings,  and  rent  or  lease  in  perpetuity  land 
and  build  thereon. 

The  area  set  apart  at  a  treaty  port  for  residence  by  sub- 
jects of  a  treaty-power  is  known  in  China  as  a  foreign 
settlement  or  concession.  x\t  an  important  commercial 
centre,  such  as  Hankow  and  Tienstin,  there  are  usually  a 
number  of  these  settlements,  each  representing  a  separate 
nationality.  Most  of  these  settlements  are  governed  each 
by  a  municipal  council  elected  by  foreign  taxpayers  residing 
within  the  concession.  The  council  administers  the  inter- 
ests of  the  concession,  issues  regulations  on  all  adminis- 
trative matters,  levies  taxes,  erects  public  works  and  roads, 
and  maintains  a  police.  For  injuries  to  person  or  property 
sustained  in  consequence  of  its  acts  the  council  is  suable 
in  the  courts  of  the  nation  of  which  the  concession  belongs 
and  damages  may  be  recovered  out  of  the  funds  levied 
under  the  municipal  regulations.  In  a  word,  the  municipal 
council  of  a  foreign  concession  practically  discharges  duties 
and  incurs  responsibilities  which  are  usually  attendant  upon 
the  municipality  of  a  European  or  an  American  city.  Tn 
certain  recent  settlements  not  yet  organized  into  municipal- 


353]  PORTS  AND  FOREIGN  SETTLEMENTS  231 

ities  the  consul  of  the  proper  state  assumes  the  adminis- 
tration directly.^ 

In  Shanghai,  one  of  the  earliest  places  opened  to  foreign 
trade  and  residence,  the  situation  is  somewhat  different. 
In  1845,  the  Taotai  of  Shanghai,  in  consultation  with  the 
British  consul,  defined  the  limits  of  a  British  settlement, 
in  pursuance  of  article  7  of  the  supplementary  treaty  of 
1843;  ^  short  time  later  the  same  step  was  taken  by  the 
Taotai  with  the  American  consul  under  article  17  of  the 
American  treaty  of  1844;  and  in  1849,  M.  Montigny,  the 
French  consul,  requested  the  same  Chinese  authority  to 
give  effect  to  article  22  of  the  French  treaty  of  1844,  pro- 
viding for  the  setting  apart  of  a  site  for  the  residence  of 
French  subjects,  which  request  was  promptly  complied 
with.  By  1854  the  interests  in  the  maintenance  of  good 
order  were  so  great,  and  the  municipal  arrangements  so  in- 
sufficient, that  all  the  consuls  stationed  in  Shanghai  met 
together  and  drafted  a  joint  code  of  regulations  for  an  in- 
ternational settlement,  which  was  proclaimed  on  July  5, 
1854,  by  the  consuls  of  Great  Britain,  France  and  the 
United  States.  Under  their  regulations  the  three  settle- 
ments were  placed  under  one  system  of  control  and  admin- 
istration. In  1862,  however,  the  French  consul  established 
a  separate  municipal  council  and  on  July  11,  1866,  the 
French  Government  issued  the  "  Code  de  Reglements  d'or- 
ganisation  municipale,"  replaced  on  April  14,  1868,  by  the 
"  Reglement  d'organisation  municipale  de  la  concession 
frangaise  de  Shanghai,"  which  still  remains  in  force.^ 

'  Aug.  Dauge,  vice-consul  de  Belgique,  De  la  condition  juridique  des 
etrangers  en  Chine,  32  Journal  du  Droit  International  Prive  (1905), 
850,  853. 

*  The  text  of  the  code  of  1866  will  be  found  in  25  Archives  Diplo- 
matiques  (1867),  447;  that  of  the  Reglement  of  1868.  in  34  Arch.  Dipl. 
(1869),  631. 


232  THE  STATUS  OF  ALIENS  IN  CHINA  [354 

The  British  and  American  settlements  were  in  1854  com- 
bined into  one. 

In  1S63,  the  American  land-renters  who  had  obtained  a 
new  settlement  in  1862  voluntarily  amalgamated  with  the 
British  under  the  international  settlement,  and  in  March, 
1866,  the  latter  adopted  a  revised  code  of  land  regulations, 
which,  with  certain  minor  changes  subsequently  effected, 
remains  the  fundamental  law  of  the  Shanghai  general 
foreign  settlement  or  Anglo-American  or  international 
settlement,  as  the  combined  concession  is  variously  called. 
Both  the  Reglement  of  1868  for  the  French  settlement  and 
the  regulations  of  1866  for  the  general  settlement  were 
approved,  September  24,  1869,  on  behalf  of  their  respec- 
tive Governments  by  the  diplomatic  representatives  at  Pek- 
ing of  France,  Great  Britain,  North  German  Confedera- 
tion, Russia  and  the  United  States  so  as  to  make  them  bind- 
ing upon  their  respective  nationals  residing  within  either 
of  the  two  settlements.  The  amendments  to  the  regula- 
tions of  1866,  adopted  by  the  land-renters  on  May  27-28, 
1869,  and  confirmed  by  the  consuls  on  July  13,  1869,  were 
likewise  approved  by  the  representatives  of  the  aforesaid 
five  powers  on  October  21,  1869.^ 

The  municipal  council  in  the  international  settlement  at 
Shanghai  is  composed  of  nine  members  elected  by  the  tax- 
payers once  a  year  to  administer  the  settlement.  The  coun- 
cil, on  account  of  the  cosmopolitan  character  of  the  settle- 
ment which  it  represents,  is  not  amenable,  in  its  corporate 
capacity,  to  the  court  of  any  one  state,  but  may  be  sued 
before  a  special  tribunal,  composed  of  three  consuls,  chosen 
annually  by  the  consular  body  at  Shanghai.   Correspondence 

^  Hertslct's  China  Treaties,  ii,  pp.  665-666.  The  text  of  the  regula- 
tions Jind  by  laws  of  1866  with  amendir.eiits  will  be  found  in  ibid.,  ii, 
pp.  666-687. 


355]  PORTS  AND  FOREIGN  SETTLEMENTS  233 

with  the  Chinese  authorities  regarding  the  affairs  of  the 
municipality  is  carried  on  by  the  dean  of  the  consular  body. 
In  general,  the  municipal  ordinances  and  regulations  of 
the  various  foreign  settlements  in  China  are  binding  upon 
all  persons,  foreign  or  Chinese,  who  choose  to  reside 
therein,  their  consent  to  observe  them  being  inferred  from 
the  fact  of  their  residence  in  them.  Obedience  to  these 
ordinances  and  regulations  by  subjects  of  a  treaty-power 
residing  within  a  given  settlement  is  enforcible  in  the  proper 
consular  court  when  such  ordinances  and  regulations  have 
been  previously  approved  by  that  power  through  its  repre- 
sentative at  Peking/ 

1  In  1881  the  municipal  council  of  the  Shanghai  in'ernational  settle- 
ment brought  an  action  before  the  American  consular  court  against 
Mr.  F.  Reid  to  compel  payment  of  taxes  levied  under  the  municipal 
regulations  of  1866.  The  defendant  denied  the  validity  of  these  regu- 
lations but  the  court  gave  judgment  for  the  plaintiff  on  the  grounds 
that  the  regulations  in  question  had  been  approved  by  the  American 
minister  and  that  therefore  they  had  the  force  of  law  upon  Americans, 
and  that  by  his  voluntarily  establishing  his  residence  within  the  settle- 
ment and  thereby  taking  advantage  of  its  good  order  and  government 
the  defendant  had  also  made  himself  liable  to  pay  his  share  of  the 
municipal  taxes.  (Opinion  of  Consul-General  O.  N.  Denny  in  this 
case  will  be  found  in  For.  Re!.,  1882,  p.  130.) 

The  question  as  to  the  authority  of  the  American  consul-general  at 
Shanghai  to  enforce  the  ordinances  of  the  municipality  against  citizens 
of  the  United  States  was  again  raised  in  1887,  and  Mr.  Bayard,  Secre- 
tary of  State,  in  his  instruction  to  Mr.  Denby,  minister  to  China,  ad- 
mitted that  it  was  "not  without  difficul  y  ".  He  said  that  the  statutes 
of  the  United  States  did  not  provide  for  the  enforcement  of  such  ordi- 
nances and  the  power  conferred  by  them  upon  the  minister  to  "  supply 
defects  and  deficiencies"  in  the  statutes  as  to  the  furnishing  of  appro- 
priate remedies,  "by  decrees  and  regulations",  meant  "the  power  to 
regulate  the  course  of  procedure  and  the  forms  of  judicial  remedies 
rather  than  any  general  legislative  power  for  the  definition  of  offences 
and  the  imposition  of  penalties  for  their  commission."  He,  however, 
was  able  to  sustain  the  authority  of  the  consul-general  to  enforce  the 
ordinances  of  the  municipality  upon  American  citizens  residing  therein 
by  the  following  course  of  reasoning: 


234  THE  STATUS  OF  ALIENS  IN  CHINA  [356 

In  the  case  of  Chinese  violating  municipal  ordinances, 

"  The  municipality  of  Shanghai  is  understood  to  have  been  organized 
by  the  voluntary  action  of  the  foreign  residents  of  certain  nationalities, 
or  such  of  those  residents  as  were  owners  or  renters  of  land,  for  the 
purpose  of  exercising  such  local  powers  for  the  preservation  of  the 
orders  and  morals  of  the  community  as  are  usually  enjoyed  by  muni- 
cipal bodies.  In  the  United  States,  where  government  is  reduced  to  a 
legal  system,  these  powers  of  local  police  rest  on  charters  granted  by 
the  supreme  legislative  authority  of  the  state;  but  it  is  not  difficult  to 
conceive  of  a  case  in  which  a  community  outside  of  any  general  system 
of  law  might  organize  a  government  and  adopt  rules  and  regulations 
which  would  be  recognized  as  valid  on  the  ground  of  the  right  of  self- 
preservation,  which  is  inherent  in  people  everywhere. 

"  In  this  light  may  be  regarded  the  municipal  ordinances  of  Shang- 
hai. The  foreign  settlement  not  being  subject  to  the  laws  of  China, 
and  the  legal  systems  of  the  respective  foreign  powers  represented 
there  being  not  only  dissimilar  inter  se,  but  insufficient  to  meet  the 
local  needs,  it  became  necessary  for  the  local  residents  interested  in 
the  preservation  of  peace  and  order  to  supply  the  deficiency. 

"American  citizens  residing  in  Shanghai  enjoy,  in  common  with 
other  persons  composing  the  foreign  settlement,  all  the  rights,  privi- 
leges, and  protection  which  the  municipal  government  affords,  and  as 
they  go  there  voluntarily,  and  presumptively  for  the  advancement  of 
their  personal  interests,  they  may  reasonably  be  held  to  observe  such 
police  regulations  as  are  not  inconsistent  with  their  rights  under  the 
laws  of  the  United  States.  It  is  true  that  this  reasoning  is  not  con- 
clusive as  to  the  strict  legal  authority  of  the  consul-general  of  the 
United  States  to  enforce  such  regulations;  but,  taken  in  connection 
with  the  fact  that  at  present  American  citizens  in  Shanghai  are  not 
subject  to  any  judicial  control  except  that  of  the  consul-general  of  the 
United  States,  it  affords  a  basis  upon  which  his  enforcement  of  the 
municipal  regulations  may  be  justified. 

"  It  is  important  to  observe  that  the  jurisdiction  of  consuls  of  the 
United  States  in  China  is  very  extensive,  including  not  only  the  ad- 
ministration of  the  laws  of  the  United  States,  and  the  law  of  equity 
and  admiralty,  but  also  of  the  common  law.  The  consular  courts  have, 
therefore,  what  the  courts  of  the  United  States  generally  have  not — 
common  law  jurisdiction  in  criminal  cases.  It  is  true  that  this  juris- 
diction is  difficult,  indeed  incapable,  of  exact  definition,  but  it  implies 
the  power  to  enforce  rules  which  are  not  to  be  found  on  the  statute- 
book  of  the  United  States,  and  which  can  be  ascertained  only  by  the 
application  of  the  general  princii)les  of  the  common  law  to  special 
cases  and  conditions.    In  respect  to  matters  of  local  police,  a  fair  meas- 


357]  PORTS  AND  FOREIGN  SETTLEMENTS  235 

generally  applicable  to  all  or  specially  applicable  to  them 
alone/  they  are  handed  over  to  the  proper  Chinese  authori- 
ties. 

As  a  rule,  the  population  of  a  foreign  settlement  consists 
mainly  of  Chinese  subjects,  who  move  to  reside  therein  for 
the  security  and  protection  which  it  affords.  They  are  per- 
mitted to  reside  in  the  concessions,  but  generally,  they  may 
not  hold  land  in  them.  As  a  matter  of  fact,  however,  a 
large  part  of  the  real  estate  in  the  concessions  is  owned  by 
Chinese,  and  this  is  effected  through  the  use  of  borrowed 
foreign  names. ^  Chinese  property  holders  in  a  foreign  con- 
cession are  not  represented  in  its  municipal  council,  though 
they  contribute  by  far  the  largest  share  to  the  revenue  of 
the  municipality.  In  the  international  settlement  at  Shang- 
hai three  Chinese  delegates  are  elected  annually  by  the  vari- 
ous Chinese  commercial  bodies,  not  to  represent  them  in 
the  council,  but  in  order  that  the  council  may  have  some 
authorized  person  to  consult  with  concerning  the  affairs  of 
the  Chinese  communities.  Notwithstanding  these  serious 
disabilities,  however,  Chinese  families  continue  to  immi- 
grate into  the  concessions  for  residence ;  and  this  steady 

ure  and  definition  of  the  law  may  be  found  in  the  regulations  adopted 
by  the  municipality  in  aid  of  and  supplementary  to  the  general  juridical 
systems  of  the  foreign  powers.  Such  a  process,  while  maintaining  the 
peace  and  order  of  the  community,  tends  to  consolidate  the  local  ad- 
ministration of  law." — Mr.  Bayard  to  Mr.  Denby,  March  7,  1887,  Ap- 
pendix to  3  Wharton's  Digest  of  International  Law,  852,  sec.  67. 

^  As  an  example  of  such  special  ordinance  may  be  cited  article  23 
of  the  land  regulations  of  1902  for  the  British  concession  at  Hankow, 
which  provides : 

"  All  Chinese  passing  through  or  in  the  concession  after  6  P.  M.  in 
the  winter  and  8  P.  M.  in  the  summer,  until  daylight,  must  be  pro- 
vided with  lighted  lanterns,  under  a  penalty  of  being  handed  to  His 
Britannic  Majesty's  Consul-General  for  transmission  to  the  native 
authorities." — Hertslet's  China  Treaties,  ii,  p.  801. 

^Journal  du  Droit  Inter)iaiional  Privc  (1905),  853. 


236  THE  STATUS  OF  ALIENS  IN  CHINA  [358 

influx  of  Chinese  elements  has  been  a  favorite  argument 
with  the  foreign  powers  in  their  chronic  claims  for  an  ex- 
tension of  the  territorial  limits  of  their  several  settlements. 

The  legal  status  of  the  foreign  settlements  within  the 
treaty  ports  must  be  next  considered.  The  importance  of 
discussing  this  question  arises  from  two  facts :  first,  for- 
eign travelers  have  shown  an  aptitude  to  judge  things  by 
external  appearances  and  consider  a  foreign  settlement  with 
its  impressive  foreign  police  "un  petit  etat  dans  I'etat" ;  and 
secondly,  in  every  settlement  in  China  there  is  an  element 
in  the  foreign  population,  including  sometimes  its  most  in- 
fluential members,  who  on  one  hand  are  ever  ready  to  com- 
bat the  exercise  by  China  of  her  territorial  rights  within 
the  settlement,  and  on  the  other,  never  cease  to  clamor  for 
rights,  and  advocate  measures,  which  are,  to  say  the  least, 
inconsistent  with  the  provisions  of  treaties. 

The  foreign  settlement  in  any  treaty  port  does  not  repre- 
sent a  transfer  or  lease  of  the  land  included  therein  to  the 
sovereign  of  the  power  for  the  accommodation  of  whose 
subjects  it  is  set  apart  by  China.  A  settlement  is  estab- 
lished, not  to  confer  upon  its  occupants  new  rights  of  juris- 
diction, but  only  to  give  them  a  place  of  residence  within 
such  a  space  as  to  enable  them  to  enjoy  the  advantage  of 
living  together.  The  land  encompassed  in  the  settlement 
remains  Chinese  territory,  subject  to  China's  sovereign 
rights.  The  legal  position  of  the  foreigners  residing  within 
the  concession  is  the  same  as  that  of  those  residing  without 
it.  Foreign  holders  of  real  property  in  a  concession  are  re- 
quired to  pay  a  land  tax  to  the  Chinese  Government. 

Chinese  residents  in  it  are  equally  subject  to  the  control 
of  Chinese  authorities  as  their  compatriots  situated  in  other 
parts  of  the  country,  and  owe  the  same  measure  of  alle- 
giance to  the  Chinese  sovereign.  If  the  foreign  municipal 
council  exercises  any  authority  therein,  it  does  so  by  virtue 


359]  PORTS  AND  FOREIGN  SETTLEMENTS  237 

of  the  permission  expressly  given  it  by  the  Chinese  Govern- 
ment in  the  land  regulations  under  which  such  council  is 
organized,  or  in  special  proclamations  issued  by  responsible 
authorities ;  in  either  case  it  exercises  an  authority  delegated 
by  the  Chinese  Government ;  and  such  authority  is  exercised 
only  for  municipal  purposes/ 

The  foregoing  are  a  few  propositions  deduced  from  a 
number  of  opinions  given  by  authorities  who  have  had  to 
deal  with  the  question  under  consideration,  either  as  dec- 
larations of  general  principles  on  the  matter  or  in  settlement 
of  actual  cases  bearing  directly  upon  it.  Of  these  the  more 
important  ones  may  be  reviewed  here  with  profit. 

The  first  important  occasion  for  discussing  the  status  of 
the  foreign  concessions  arose  in  1862  when  the  Taotai  of 
Shanghai,  hard  pressed  for  revenue  to  pay  for  the  defensive 
measures  taken  against  the  approach  of  the  Taiping  rebels, 
proposed  to  lay  a  graduated  capitation  tax  on  all  Chinese 
subjects  and,  on  July  5,  requested  the  assistance  of  the 
British  Consul,  Mr.  Medhurst,  to  ascertain  the  number  of 

*  Unreasonable  assertions  of  authority  by  the  municipal  authorities 
of  the  foreign  concessions,  however,  are  not  unknown  in  China.  An 
amendmen!.  to  the  rules  of  1869  for  the  mixed  court  of  Shanghai,  pub- 
lished June  13,  1901,  by  the  American,  British  and  German  consuls- 
general,  provides  that  a  foreign  assessor  should  sit  in  the  mixed  court 
in  all  cases  including  those  to  which  Chinese  alone  were  parties.  One 
of  the  amendments  to  the  same  rules  proposed  by  the  consuls-general 
in  Shanghai  sta  es  that,  "  the  warrants  issued  by  the  Mixed  Court  for 
the  apprehension  of  Chinese  residing  in  the  International  Settlements 
of  Siianghai  must  always  be  signed  and  sealed  by  the  senior  Consul- 
General."  Such  assertions  of  authority  are  undoubtedly  contrary  to 
the  intentions  of  those  who  laid  the  foundation  of  the  international 
municipality  at  Shanghai  on  the  avowed  principle  of  "exclusive  juris- 
diction of  China  over  Chinese,  and  of  each  foreign  nation  over  its  sub- 
jects," and  cannot  stand  for  a  moment  the  test  of  treaty  stipula'ions, 
which  are  the  criteria  as  well  as  the  bulwark  of  the  rights  of  for- 
eigners in  China. 


238  THE  STATUS  OF  ALIENS  IN  CHINA  [-60 

Chinese  residents,  particularly  those  in  foreign  employ,  in 
the  British  settlement.^  On  July  16,  the  consul  declined 
to  render  the  assistance  requested  of  him;  he  admitted  the 
right  of  the  Chinese  authorities  to  impose  on  their  own  sub- 
jects any  tax  not  interfering  with  rights  of  foreigners  se- 
cured by  treaty ; 

but  as  regards  those  natives  who  reside  within .  these 
limits  [continued  the  consul]  I  am  not  in  a  position  to  re- 
cognize such  a  right,  as  it  has  been  a  matter  of  understanding 
for  years  past  between  the  local  authorities  and  this  Consulate 
that  the  jurisdiction  of  the  former  over  their  own  subjects 
living  within  these  limits  shall  only  be  exercised  through  and 
with  the  consent  of  the  British  consul,  and  with  the  large 
Chinese  population  now  depending  on  our  protection  and 
sharing  our  interests,  it  would  be  inexpedient  to  allow  of  any 
departure  from  this  rule.^ 

The  matter  was  subsequently  referred  to  the  British  min- 
ister at  Peking,  Sir  Frederick  W.  A.  Bruce,  who,  on  No- 
vember 5,  1862,  gave  the  following  instructions  in  reply  to 
the  inquiry : 

In  reply  to  your  despatch  of  the  14th  August  last,  request- 
ing my  advice  as  to  the  proposals  made  by  the  Taotai  for  the 
taxation  of  Chinese  subjects  within  the  limits  of  the  so-called 
British  Concession,  I  have  to  observe  that  there  is  nothing  in 
the  Treaties  which  warrants  me  in  interfering  in  any  way  in 
such  questions.  The  Taotai  is  entitled  to  levy  taxes  as  he 
pleases :  and  as  long  as  he  merely  seeks  to  impose  taxes  on 
persons  resident  in  the  Concession,  which  are  paid  by  those 
in  the  City  and  suburb,  I  see  no  reason  for  objecting  to  it  at  a 
time  when  it  is  our  interest  as  well  as  that  of  the  Chinese  that 
the  Government  shall  not  be  deprived  of  its  resources. 

*  Pari.  Papers,  China,  no.  3  (1S64),  p.  10. 
»  Ibid. 


361]  PORTS  AND  FOREIGN  SETTLEMENTS  239 

A  heavy  responsibility  will  rest  on  the  Consul  of  any  port 
should  his  action  in  such  matters  lead  to  the  disbanding  or 
mutiny  of  the  highly-paid  force  under  foreign  officers  which 
the  Chinese  have  embodied  by  our  advice.^ 

On  being  apprised  of  the  question  Earl  Russell  wrote  to 
Sir  Frederick  on  April  8,  1863,  stating  that  Her  Majesty's 
Government  entirely  concurred  in  his  views  and  approved 
his  instructions  to  the  consul,  and  adding, 

The  lands  situated  within  the  limits  of  the  British  Settle- 
ment are  without  doubt  Chinese  territory,  and  it  cannot  rea- 
sonably be  held  that  the  mere  fact  of  a  residence  within  those 
limits  exempts  Chinese  subjects  from  fulfilling  their  natural 
obligations.- 

In  1863  the  legal  position  of  the  foreign  concession  at 
the  treaty  ports  was  again  considered  in  connection  with 
the  proposed  reorganization  of  the  municipality  at  Shang- 
hai. On  motion  of  the  United  States  minister,  Mr.  Anson 
Burlingame,  the  foreign  representatives  at  Peking  met  in 
conference  and  agreed  to  a  number  of  principles,  upon 
which  the  reorganization  of  the  foreign  settlements  in 
Shanghai  should  be  based.     These  are: 

1.  That  whatever  territorial  authority  is  established  shall  be 
derived  directly  from  the  Imperial  Government  through  our 
Ministers. 

2.  That  such  shall  not  extend  beyond  simple  municipal 
matters,  roads,  police  and  taxes  for  municipal  objects. 

3.  That  the  Chinese  not  actually  in  foreign  employ,  shall 
be  wholly  under  the  control  of  Chinese  officers,  as  much  as  in 
the  Chinese  City. 

^  Pari.  Papers,  China,  no.  3  (1864),  p.  11. 
*  Ibid.,  p.  30. 


240  THE  STATUS  OF  ALIENS  IN  CHINA  [362 

4.  That  each  Consul  shall  have  the  Government  and  con- 
trol of  his  own  people,  as  now :  the  municipal  authority  simply 
arresting  offenders  against  the  public  peace,  handing  them 
over,  and  prosecuting  them  before  their  respective  authorities, 
Chinese,  and  others  as  the  case  may  be. 

5.  That  there  shall  be  a  Chinese  element  in  the  municipal 
system,  to  whom  reference  shall  be  made,  and  assent  obtained 
to  any  measure  affecting  the  Chinese  residents.^ 

It  was  upon  these  principles  that  the  chief  municipality  at 
Shanghai  was  rebuilt.  The  authority  of  the  territorial  sov- 
ereign over  it  is  expressly  acknowledged  in  article  28  of  the 
Shanghai  Land  Regulations  of  1866,  as  revised  in  1869, 
which  provides  that  amendments  and  doubts  as  to  the  con- 
struction of  these  regulations  "  must  be  consulted  upon 
and  settled  by  the  foreign  consuls  and  local  Chinese  authori- 
ties, subject  to  confirmation  by  the  foreign  representatives 
and  Supreme  Chinese  Government  at  Peking."  * 

The  attempt  made  by  a  British  consul  at  one  of  the  new 
ports  in  1864  to  exercise  jurisdiction  over  leased  land  in 
defiance  of  the  non-concession  doctrine  as  propounded  by 
the  foreign  representatives  at  Peking  led  to  "  another  full 
and  frank  exchange  of  views  on  the  subject  "  between  the 
ministers  of  Great  Britain  and  the  United  States  at  Peking. 
In  his  circular  instructions  to  the  British  consuls  in  China, 
May  16,  1864,  Sir  Frederick  states: 

1  am  anxious  to  prevent  misapprehension  as  to  the  juris- 
diction that  may  be  claimed  by  British  authorities  within  the 
limits  of  settlements  formed  at  the  ports  of  China  on  land 
leased  by  her  Majesty's  government  for  the  purposes  of  trade. 
The  lease  to  the  British  government  gives  no  jurisdiction  over 

^  Sir  F.  W.  A.  Bruce,  to  foreign  land-renters  of  Shanghai,  Aug.  6, 
1863,  Pari.  Papers,  China,  no.  3  (1864),  p.  146. 

2  Hertslet's  China  Treaties,  ii,  p.  678. 


363]  PORTS  AND  FOREIGN  SETTLEMENTS  241 

the  territory  itself.  The  land  remains  subject  to  the  sover- 
eignity of  China,  and  no  further  jurisdiction  can  be  exercised 
over  British  persons  and  property  within  it  than  can  be 
exercised  over  them  at  any  open  port  where  there  has  been 
no  special  lease  of  land  for  their  benefit.  For  the  authority 
exercised  in  Her  Majesty's  name  is  derived  from  the  treaties 
with  China,  and  is  not  affected  in  any  way  by  the  grant  of 
a  lease.^ 

This  view  was  shared  by  other  foreign  representatives  then 
in  Peking,  and  the  latter  in  entertaining  it  were  supported 
by  their  respective  Governments.^ 

The  Government  of  the  United  States,  whose  minister  at 
Peking,  Mr.  Anson  Burlingame,  like  Sir  Frederick,  was 
vigorously  opposed,  to  use  his  own  language,  "  to  all 
pretensions  of  jurisdiction  over  persons  or  territory  under 
the  name  of  concession,"  binds  itself  in  the  following  sol- 
emn engagement : 

His  Majesty  the  Emperor  of  China,  being  of  the  opinion 
that,  in  making  concessions  to  the  citizens  or  subjects  of  for- 
eign Powers  of  the  privilege  of  residing  on  certain  tracts  of 
land,  or  resorting  to  certain  waters  of  that  Empire  for  pur- 
poses of  trade,  he  has  by  no  means  relinquished  his  rights  of 
eminent  domain  or  dominion  over  the  said  land  and  waters, 
hereby  agrees  that  no  such  concession  or  grant  shall  be  con- 
strued to  give  to  any  Power  or  party  which  may  be  at  war 
with  or  hostile  to  the  United  States,  the  right  to  attack  the 
citizens  of  the  United  States  or  their  property  within  the  said 
land  or  waters,  and  the  United  States  for  themselves  hereby 
agree  to  abstain  from  offensively  attacking  the  citizens  or  sub- 
jects of  any  Power  or  party  or  their  property  with  which  they 
may  be  at  war  on  any  such  tract  of  land  or  waters  of  the 
said  Empire. 

^  Dipl.  Corr.,  1864,  pt.  iii,  p.  380. 

'  Mr.  Burlingame  to  Mr.  Seward,  May  21.  1864,  ihid.,  p.  379. 


242  THE  STATUS  OF  ALIENS  IN  CHINA  [364 

It  is  further  agreed  that,  if  any  right  or  interest  in  any  tract 
of  land  in  China  has  been  or  shall  hereafter  be  granted  by  the 
Government  of  China  to  the  United  States  or  their  citizens  for 
the  purpose  of  trade  or  commerce,  that  grant  shall  in  no 
event  be  construed  to  divest  the  Chinese  authorities  of  their 
right  of  jurisdiction  over  persons  and  property  within  said 
tract  of  land,  except  so  far  as  that  right  may  have  been  ex- 
pressly relinquished  by  Treaty.^ 

Another  proof  of  the  fact  that  the  grant  by  China  of  land 
for  the  purpose  of  making  a  foreign  concession  does  not 
carry  with  it  a  transfer  of  the  territory  or  of  jurisdiction 
therein,  is  that  the  opposing  belligerent  powers  in  the  past 
wars  to  w^hich  China  was  not  a  party,  though  they  both 
maintained  the  so-called  concessions  in  China,  uniformly 
observed  the  neutrality  of  the  territory  included  within 
these  concessions  and  refrained  from  attacking  each 
other  there.  In  times  of  civil  disturbances  in  China 
the  parties  to  the  strife  have  generally  avoided  the  foreign 
concessions  in  carrying  on  their  hostilities,  simply  as  a 
matter  of  policy.  In  a  war  with  a  foreign  powder  or  pending 
its  outbreak,  China  may  close  the  treaty  ports  for  defen- 
sive purposes,  no  matter  how  many  foreign  concessions  they 
may  contain  within,  though  there  is  an  obligation  on  her 
to  remove  the  obstructions  as  soon  as  the  necessity  which 
occasioned  their  planting  ceases  to  exist." 

The  nature  of  the  international  and  French  settlements 
in  Shanghai  may  be  further  inferred  from  the  fact  that 
title  deeds  to  land  ''  situated  therein  are  not  required  to  be 

'  Article  i  of  the  supplementary  treaty  of  Washington,  July  28,  1868. 

'  The  failure  on  the  part  of  China  promptly  to  remove  the  obstruc- 
tions in  the  Canton  River  after  the  conclusion  of  the  war  with  France 
in  1885  led  to  a  protest  from  the  United  States.  On  this  question,  see 
For.  Rel.,  1884,  pp.  64.  84;  ibid.,  1886,  p.  95. 

'  The  right  of   foreigners  to  own   landed  property  in   China  is  not 


365]  PORTS  AND  FOREIGN  SETTLEMENTS  243 

registered  in  the  British  or  French  consulate,  but  that  regis- 
tration in  the  consulate  of  the  holders'  nationality  is  held 
to  be  sufficient  to  establish  their  validity.  In  the  early  days 
of  the  two  settlements  the  English  and  French  consuls,  as 
a  matter  of  fact,  claimed  territorial  jurisdiction  over  the 
settlements  and  required  all  foreigners  desiring  to  hold  land 
therein  to  apply  to  them  respectively;  but  the  American 
consul  refused  to  comply  with  the  requirement  and  insisted 
on  title  deeds  being  issued  to  United  States  citizens  through 
the  consulate  of  the  United  States.  On  the  adoption  of  the 
joint  code  of  land  regulations  in  1854  the  representatives 
of  Great  Britain  abandoned  "  without  reservation  all  their 
previous  pretensions  to  any  exclusive  rights  or  jurisdiction 
over  their  respective  settlements."  ^  In  fact,  prior  to  1898, 
sites  in  the  French  settlement  were  held  under  title  deeds 
issued  by  the  Taotai  or  under  deeds  of  lease  transferred 
directly  from  the  original  Chinese  owners  without  all  such 
deeds  being  necessarily  registered  in  the  French  consulate. 
In  that  year,  in  the  case  of  the  three  lots  situated  in  the 
French  settlement  held  by  Thomas  Hanbury,  a  British  sub- 
ject, under  title  deeds  issued  by  the  Shanghai  Taotai  in 
1861  and  registered  in  the  British  consulate,  the  French 
consul,  on  inspecting  the  deeds,  pronounced  them  to  be 
irregular  on  the  ground  that  they  were  not  registered  in  his 
consulate  in  accordance  with  the  principle  of  locus  regit 
actum  in  international  law."     Mr.   Hanbury,   through  his 

provided  in  any  of  the  treaties,  though  it  is  practically  enjoyed  by 
them;  the  American  trea'y  of  1903  gives  citizens  of  the  United  States 
the  right  to  lease  land  "  in  perpetuity  "  within  places  "  set  apart  for  the 
use  and  occupation  of  foreigners." 

^  Memorandum  by  Act.  Consul-General  Brennan  on  the  legal  status 
of  the  French  Settlement,  Pari.  Papers,  China,  no.  i  (1899),  p.  268. 

'  French  Consul  at  Shanghai  to  Mr.  Hanbury,  Tune  18,  1898,  Pari. 
Papers,  China,  no.  11  (1899),  p.  224. 


244  ^^^  STATUS  OF  ALIENS  IN  CHINA  [366 

agents,  refused  to  register  his  land  in  the  French  consulate, 
and  this  refusal  was  upheld  by  the  British  minister  at  Pek- 
ing.' 

When  later  in  the  same  year,  the  French  authorities 
asked  the  Chinese  Government  for  an  extension  of  the 
French  settlement  in  Shanghai,  the  British  Government, 
evidently  having  the  Hanbury  case  still  fresh  in  memory, 
openly  opposed  the  proposition  and  bent  all  its  energies  to 
defeat  it.  It  instructed  its  minister  at  Peking  to  remind 
China  of  her  undertaking  of  February  9-1 1,  1898,  as  to 
the  non-alienation  of  the  Yangtze  region,  and  warned  her 
that  compliance  with  the  French  demand  would  be  "  a  vio- 
lation of  the  rights  of  this  country  [Great  Britain]."  ^ 

To  compel  the  voice  of  the  British  Government  to  be 
heard.  Lord  Salisbury,  on  December  21,  1898,  advised  the 
Admiralty  to  send  a  third  ship-of-war  to  Nanking,  whither 
two  British  war-vessels  had  already  been  despatched  "  with 
a  view  to  affording  moral  support  to  the  Viceroy  in  resist- 
ing the  French  demands."  ^  The  British  Government, 
however,  ultimately  withdrew  its  opposition  to  the  French 

1  Sir  C.  MacDonald  to  Marquis  of  Salisbury,  Aug.  22,  1898,  Pari. 
Papers,  China,  no.  i  (1899),  p.  267. 

2  Marquis  of  Salisbury  to  Sir  C.  MacDonald,  Jan.  3,  1899,  tel.. 
Pari.  Papers,  China,  no.  i  (1899),  p.  341.  Another  of  the  reasons 
given  by  the  British  Government  for  opposing  the  original  French 
demand  for  a  settlement  extension  was  that  if  the  proposed  extension 
were  made  certain  British  property  would  thereby  be  included  in  it, 
and  that  Great  Britain  "  cannot  agree  that  any  British  property  should 
be  given  over  to  be  administered  by  the  French."  The  same  circum- 
stance arose  in  connection  with  the  granting  of  a  concession  in  Han- 
kow by  China  to  Russia  and  France.  These  difhculties  led  to  the 
notification  to  China  by  Great  Britain  that  it  "  will  not  in  future 
allow  the  property  of  British  subjects  to  be  included  in  any  concession 
granted  to  a  foreign  power,  unless  with  the  consent  of  the  owners." 
— Pari.  Papers,  China,  no.  i  (1900),  pp.  191,  193. 

»  Pari.  Papers,  China,  no.  i  (1899),  p.  330. 


367]  PORTS  AND  FOREIGN  SETTLEMENTS  245 

demand,  which  had  meanwhile  been  reduced  to  a  much 
smaller  area  than  it  had  originally  asked  for — but  on  what 
conditions?  The  opposition  was  withdrawn  only  after  the 
French  minister  had  agreed  to  forward,  and  had  forwarded, 
to  the  French  Consul-General  in  Shanghai  the  following 
instructions : 

1.  All  deeds  to  British  property  are  to  be  registered  in  the 
British  Consulate; 

2.  All  municipal  Regulations  are  to  be  submitted  for  the 
approval  of  the  British  minister  at  Peking  before  they  can 
be  enforced  on  British  subjects. 

3.  All  titles  to  British  property  which  are  declared  in  order 
by  the  British  Consul-General  are  to  be  considered  so  by  the 
French  authorities. 

And  in  his  note  to  Mr.  Cambon,  French  ambassador  at 
London,  July  17,  1899,  Lord  Salisbury  expressed  himself 
as  being  prepared  to  instruct  the  British  minister  at  Peking 
to  support  a  French  application  for  an  extension  of  the 
French  settlement  in  Shanghai  within  specified  limits  on 
the  condition  that  the  three  rules  quoted  above  "  shall  be 
strictly  observed."  It  was  further  added  in  the  note  that 
the  same  rules  were  "  to  apply  as  regards  British-owned 
property  in  the  French  concession  at  Hankow." 

As  to  the  limits  of  treaty  ports  the  question  remains 
doubtful  in  many  cases.  In  pursuance  of  a  common  provi- 
sion in  the  earlier  treaties  the  limits  of  the  ports  for  cus- 
toms purposes  are  generally  defined  for  the  convenience  of 
vessels  entering  them,  as  well  as  for  the  protection  of 
revenue  leviable  on  imports.  But  as  to  the  boundaries  of 
the  ports  on  land,  the  matter  is  not  settled.  With  reference 
to  the  likin,  which  may  not  be  collected  within  the  limits 

'  Pari.  Papers,  China,  no.  i   (1900).  p.  193. 


246  THE  STATUS  OF  ALIENS  IN  CHINA  [368 

of  a  treaty  port/  the  Chef 00  Convention  of  September  13, 
1876,  provided  that  "  Sir  Thomas  Wade  agrees  to  move  his 
Government  to  allow  the  ground  rented  by  foreigners  (the 
so-called  concessions)  at  the  different  ports  to  be  regarded 
as  the  area  of  exemption  from  likin;"  but  the  additional 
article  of  July  18,  1885,  declares  that  this  question  "  shall 
be  reserved  for  further  consideration  between  the  two 
Governments,"  which  so  far  as  is  known,  has  not  yet  taken 
place  definitively. 

For  purposes  of  residence  and  trade "  the  limits  of  an 
open  port  would  seem  to  be  determined  by,  and  co-exten- 
sive with,  the  limits  of  the  foreign  concession,  or  conces- 
sions as  a  whole,  situated  within  it.  The  point  was  raised 
and  so  decided  in  a  case  arising  in  1897.  ^y  ^^e  sixth 
article  of  the  treaty  of  Shimonoseki,  April  17,  1895,  Hang- 
chow,  among  others,  was  opened  to  the  trade  and  residence 
of  Japanese  subjects  "  under  the  same  conditions,  and  with 
the  same  privileges  and  facilities  as  exist  at  the  present 
in  open  cities,  towns  and  ports  of  China."  In  the  fourth 
article  of  the  treaty  of  commerce  and  navigation,  July  21. 
1896,  concluded  in  pursuance  of  a  provision  in  the  treaty 
of  Shimonoseki,  it  is  provided  that  Japanese  subjects  may 
reside  and  carry  on  trade  "  in  all  the  ports  and  towns  of 
China  which  are  now  or  may  hereafter  be  opened  to  for- 
eign residence  and  trade,"  and  that  "  within  the  localities  at 
those  places  which  have  already  been  or  may  hereafter  be 
set  apart  for  the  use  and  occupation  of  foreigners,  they  are 
allowed  to  rent  or  purchase  houses,  rent  or  lease  land,  and 

'  The  exemption  of  the  Settlenienls  in  Shanghai  from  likin  taxation 
was  stipulated  for  in  an  agreement  concluded  in  1876  between  the 
Tsungli  Yamen  and  the  German  minister. — 67  New  Coll.  (General),  3. 

*  Under  Article  12  of  the  British  Treaty  of  Tientsin,  June  26,  1858, 
however,  British  subjects  may  build  or  open  houses,  warehouses,  etc., 
at  the  ports  or  at  other  places.    See  infra,  sec.  16. 


369]  PORTS  AND  FOREIGN  SETTLEMENTS  247 

to  build  churches,  cemeteries  and  hospitals."  In  the  summer 
of  1897  the  Tsungli  Yamen  represented  to  Mr.  Denby, 
United  States  minister,  that  an  American  had  established, 
in  violation  of  treaty,  an  office  in  the  city  of  Hangchow, 
outside  of  the  Japanese  concession,  and  asked  him  to  direct 
his  national  to  remove  from  the  said  city.  Mr.  Denby  re- 
plied that  he  was  unable  to  see  any  reason  why,  under  the 
treaties,  the  said  American,  or  any  other  foreigner,  had  not 
the  right  to  reside  in  Hangchow,  this  right  of  residence 
being  "  secured  by  the  sixth  article  of  the  Shimonoseki 
Treaty  as  to  the  four  towns  which  were  opened  by  that 
treaty."  ^  Subsequently,  however,  the  American  minister 
learned  that  the  Japanese  Government  did  not  regard  the 
aforesaid  treaty  as  conferring  on  Japanese  the  right  of  resi- 
dence at  Hangchow  and  Soochow  beyond  the  limits  of  the 
Japanese  concessions ;  that  England  and  other  powers 
would  acquiesce  in  the  contention  of  China  that  foreigners 
should  establish  their  business  premises  within  the  conces- 
sions designated  for  them  at  these  cities ;  and  that  he 
deemed  it  "  inadvisable  for  this  legation  to  insist  on  privi- 
leges under  Japanese  treaties  which  the  Japanese  them- 
selves waive  and  which  are  not  asserted  in  behalf  of  the 
citizens  of  the  other  powers."  ^  Meanwhile  all  the 
issues  of  the  question  were  made,  as  stated  in  Mr.  Sher- 
man's instructions  to  Mr.  Denby,  November  30,  1897,^ 
"  the  occasion  of  an  exhaustive  examination  by  the  Solici- 
tor of  this  Department,  with  the  conclusion  that  the  circum- 
stances would  not  warrant  insistence  by  this  Government 
upon  a  contention  for  the  unrestricted  residence  of  Ameri- 

1  Mr.  Denby  to  Tsungli  Yamen,  Aug.  4,  1897.  For.  Re!..  1897,  P-  75- 

*  Mr.  Denby  to  Mr.  Sherman,  Aug.  30,  1897,  ibid.,  p.  76. 

*  Ibid.    For  the  opinion  of  Mr.  Penfield,  the  solicitor,  see  ibid.,  p.  77. 


248  THE  STATUS  OF  ALIENS  IN  CHINA  [370 

can  citizens  outside  of  those  foreign  concessions  [at  Soo- 
chow  and  Hangchow]."  ^ 

In  view  of  this  conclusion  come  to  by  the  United  States 
on  the  question,  derived,  as  it  is  stated,  from  "  a  fair  and 
reasonable  construction  "  mainly  of  the  restrictive  clause  in 
the  fourth  article  quoted  above  of  the  Japanese  treaty  of 
1896,  it  is  significant  to  note  that  substantially  the  same 
clause  is  stipulated  in  the  third  article  of  the  treaty  con- 
cluded by  the  United  States  with  China  at  a  subsequent 
date,  namely,  October,  1903.  From  this  stipulation,  and 
the  fact  that  the  restriction  contained  therein  is  declared 
to  be  applicable  to  all  the  ports  or  localities  of  China 
"  which  are  now  open  "  as  well  as  to  those  which  "  may 
hereafter  be  opened  "  to  foreign  residence  and  trade,  it 
seems  as  though  the  United  States  Government  had,  for 
purposes  of  residence  and  trade,  at  least,  assented  to  the 
view  persistently  urged  by  the  Chinese  Government  that 
the  limits  of  an  open  port  correspond  with  the  limits  of 
the  foreign  concession  or  concessions  in  their  entirety  es- 
tablished within  it,  save,  perhaps,  the  general  reservation 
under  the  most-favored-nation  clause. 

The  question  of  the  limits  of  the  open  ports  has  fre- 
quently been  raised  also  in  respect  of  matters  of  likin  tax- 
ation and  the  Chinese  authorities  have  as  often  adhered  to 
their  well-known  view.  Take  a  recent  case  for  example. 
In  1905  a  quantity  of  British-owned  merchandise  was  sub- 
jected to  the  likin  imports  within  the  walled  city  of  Chang- 
sha  and  thereupon  the  British  minister  complained  of  the 
action  to  the  Waiwu  Pu  on  the  ground  that  Changsha  had 
been  opened  to  foreign  commerce,  and  asked  it  to  instruct 
the  Governor  of  Hunan  to  the  effect  that  the  Chinese  city 
within  the  wall  was  part  of  the  port  and  that  no  likin  could 

'  This  conclusion  seems  to  he  in  accord,  also,  with  a  recognized  canon 
of  construction,  which  is  expressio  unius  est  exclusio  alterius. 


371  ]  PORTS  AND  FOREIGN  SETTLEMENTS  249 

be  levied  on  foreign  goods  protected  by  the  proper  passes; 
but  the  Waiwu  Pu  repHed  that, 

According  to  its  real  meaning  the  word  port  does  not  in- 
clude the  moat  or  area  within  the  city  wall.  If  the  Chinese 
officials  and  people  are  unwilling  to  have  foreign  merchants 
settle  outside  the  limits  of  a  port,  they  have  some  grief  at 
heart,  namely,  that  China  is  not  allowed  to  exercise  juris- 
diction over  foreign  subjects  within  her  territory.  If  in  ac- 
cordance with  article  12  of  the  Anglo-Chinese  treaty  of  com- 
merce of  1902  extraterritoriality  is  relinquished,  there  will 
then  be  no  objection  to  according  foreigners  the  liberty  to 
live  wherever  they  may  please.^ 

The  same  view  as  to  the  limits  of  the  treaty  port  was 
held  by  the  Governor  in  1907  in  the  case  of  Kau  Ching- 
tong,  the  Chinese  representative  of  a  Japanese  firm,  who 
was  arrested  in  Shanghai  outside  the  limits  of  the  foreign 
settlements,  on  a  charge  of  violating  a  Chinese  law  relating 
to  the  transport  of  tribute  rice.  The  Japanese  consul-general 
saw  fit  to  interpose  himself  in  the  case,  and  in  his  communi- 
cation to  the  Governor  of  Chekiang,  under  whose  order 
the  prisoner  had  been  arrested,  he  argued  against  the  legal- 
ity of  the  arrest  from  the  rules  for  the  mixed  court  of 
Shanghai  regulating  suits  and  cases  within  the  foreign 
settlements,  and  from  "  an  established  rule,"  to  use  his  own 
language,  "  that  the  boundaries  of  every  port  open  to  for- 
eign commerce  extend  in  all  directions  100  li  from  the 
Settlements."  The  reply  of  the  Governor  to  these  extrav- 
agant contentions  was: 

Since  the  facts  of  Kau  Ching-tong's  case  arose  in  the  inland 
and  his  arrest  was  made  within  the  Chinese  jurisdiction,  the 
rules  for  the  mixed  court  in  the  foreign  settlements  have  noth- 
ing to  do  with  the  case. 

*  7  New  Collection  (Gr.  Br.),  3- 


250  THE  STATUS  OF  ALIENS  IN  CHINA  [372 

Again  article  6  of  the  treaty  of  commerce  and  navigation 
(of  July  21,  1896)  provides  that  Japanese  may  travel  to  the 
interior  under  passports  but  that  in  ports  open  to  foreign 
trade  they  may  go  on  excursions  without  passports,  to  a  dis- 
tance not  over  100  Chinese  li,  and  for  a  period  not  over  five 
days.  This  is  a  general  rule  found  in  the  treaties  made  by 
China  with  the  foreign  nations.  It  refers  only  to  the  case 
of  a  foreigner  going  out  on  an  excursion  and  does  not  mean 
that  the  ports  open  to  foreign  trade  themselves  extend  in  all 
directions  100  li  beyond  their  actual  limits.  Yet  your  com- 
munication states  that  "  in  accordance  with  the  established 
rule  the  limits  of  a  port  open  to  foreign  trade  extend  100  li 
from  the  foreign  Settlements  in  all  directions."  Such  a  rule 
I  have  never  heard  of  heretofore.  Your  explanation  seems 
to  lack  clearness.  Moreover,  it  seems  to  be  Cjuite  irrelevant 
to  invoke  the  special  rule  regulating  the  excursions  of  for- 
eigners in  a  case  of  the  arrest  of  a  Chinese  subject  within 
Chinese  jurisdiction.' 

§  2.  Ports  voluntarily  opened  by  China 

In  recent  years  China  has  of  her  own  will  and  initiative 
opened  a  number  of  places  in  the  various  parts  of  her  coun- 
try to  commerce,  under  conditions  entirely  different  from 
those  according  to  which  certain  ports  have  been  estab- 
lished by  treaty.  The  boundaries  of  a  voluntarily  opened 
port  are  fixed  by  imperial  decree,  and  within  them  foreign 
merchants  of  all  nationalities  and  Chinese  merchants  are 
permitted  to  lease  ground  without  distinction.  However, 
"  the  control  of  all  affairs  therein,"  as  is  provided  in  the 
renting  and  building  regulations  for  the  port  of  Chinan  Fu, 
opened  by  China  voluntarily,  "  shall  pertain  entirely  to 
China;  foreigners  must  not  interfere." 

To   the   assertion   by    China   of    a   distinction   between 

'  For   correspondence    relative    to    the   case,    see  40  New   Collection 
(Japan),  i  et  seq. 


273]  PORTS  AND  FOREIGN  SETTLEMENTS  25 1 

treaty  ports  and  those  opened  by  her  own  action,  the 
powers  have  taken  exception.  They  maintain  that  the 
treaty  stipulations  as  to  the  former  are  equally  and  fully 
applicable  to  the  latter.  The  !irst  important  case  arose  in 
1899  when  the  customs  commissioner  at  Santuao,  opened 
by  China  herself,  announced  that  in  addition  to  the  treaty 
tariff  duties,  wharfage  dues,  at  the  rate  of  two  per  cent  on 
customs  duties,  would  be  collected  for  municipal  purposes, 
in  harmony,  as  the  commissioner  stated,  with  the  practice 
at  the  treaty  ports,  where  a  similar  tax  is  levied  by  the  for- 
eign municipal  council  or  collected,  as  in  Tientsin  and 
Shanghai,  by  the  customs  and  handed  over  to  the  coun- 
cils of  the  nations  concerned  for  their  use.^  The  British 
representative  at  Peking,  however,  had  a  different  opinion : 
he  considered  the  proposed  tax  to  be  "  objectionable  on 
principle,"  and  pointed  out  to  the  Tsungli  Yamen  at  an  in- 
terview that  such  an  addition  to  the  tariff  was  "  unauthor- 
ized." 

The  subject  was  then  brought  up  before  a  meeting  of 
the  foreign  representatives  on  June  9,  1899,  and  the  British 
charge  d'affaires  stated  that  "  to  allow  the  imposition  of 
this  tax  .  .  .  would  amount  to  the  admission  of  the  con- 
tention now  being  raised  by  the  Chinese  authorities,  that  to 
such  ports  as  Woosung,  Chinwangtao,  and  Santuao,  which 
have  been  voluntarily  opened  by  China,  the  stipulations  as 
to  treaty  ports  are  not  necessarily  applicable,  and  this  ad- 
mission would  but  open  the  way  for  any  further  duties 
and  taxes  which  the  Chinese  authorities  at  such  ports  might 
wish  to  impose  on  foreign  commerce."  "  All  the  foreign 
representatives  present,    except   the   German   charge  d'af- 

'  M.  von  Tanner,  Customs  Commissioner,  to  Viceroy  Hsu  of  Fukien 
and  Chekioug,  May  24,  1899,  Pari.  Papers,  China,  no.  i  (1900),  p.  251. 

-  Mr.  Bax  Ironside  to  Marquis  of  Salisbury,  June  10,  1899,  Pari. 
Papers,  China,  no.  i  (1900),  p.  211. 


252  THE  STATUS  OF  ALIENS  IN  CHINA  [374 

faires,  agreed  with'  this  view  and  pronounced  the  proposed 
tax  as  being  illegal.  The  objections  were  recorded,  and  on 
November  2,  the  doyen  of  the  diplomatic  corps  at  Peking 
sent  a  note  to  the  Tsungli  Yamen,  stating  that  while  the 
foreign  representatives  were  disposed  to  consider  any  op- 
portunity of  levying  an  additional  tax,  which  was  moderate 
and  just,  they  could  not  admit  that  a  higher  tax  might  be 
imposed  on  commerce  and  navigation  than  had  been  fixed 
by  the  treaties;  and  that  consequently  the  surtax  of  two 
per  cent  on  customs  duties  established  at  Santuao  would 
not  be  fair  without  the  consent  of  the  diplomatic  corps. 
The  note  concludes  with  this  sentence :  "  C'est  une  question 
de  principe."  ^  Lord  Salisbury,  on  August  26,  1899,  in 
approving  Mr.  Bax  Ironside's  views  and  actions  on  the 
question,  added  the  following  instructions : 

No  distinction  can  be  admitted  by  Her  Majesty's  Govern- 
ment between  ports  opened  by  treaty  or  arrangement  with  a 
foreign  Power  and  those  declared  open  by  the  initiative  of 
the  Chinese  Government.- 

§  3.  Leased  Ports 

Within  the  territory  leased  by  China  to  certain  powers, 
except  Port  Arthur,  foreigners  generally  are  also  entitled 
to  reside  and  carry  on  trade.  The  precise  position  of  for- 
eign merchandise  in  such  leased  ports  depends  primarily 
upon  the  nature  of  the  relationship  in  which  the  territory 
encompassed  within  the  ports  stands  with  the  sovereign  of 
China. 

By  the  convention  of  March  6,  1898,  the  Emperor  of 
China  leased  Kiaochow  to  Germany  for  ninety-nine  years, 
"  reserving  to  himself  all  rights  of  sovereignty  (alle  Rechte 
der  Souverdnit'dt)  in  a  zone  of  50  kilom.  (too  Chinese  li) 

'  I'arl.  Papers.  China,  no.  i  (1900),  p.  406.  *  Ibid.,  p.  276. 


375]  PORTS  AND  FOREIGN  SETTLEMENTS  253 

surrounding  the  Bay  of  Kiaochau  at  high  water,"  within 
which  area  is  situated  the  leased  port;  and  specifically  he 
further  "  reserves  to  himself  the  right  to  station  troops 
within  that  zone,  in  agreement  with  the  German  Govern- 
ment, and  to  take  other  military  measures.  As  to  the  ques- 
tion of  jurisdiction,  the  convention  provides  that  "  the  ter- 
ritory leased  to  Germany  cannot,  prior  to  the  expiration  of 
the  term  of  the  lease,  be  administered  by  China  but  it  is  to 
be  left  to  be  governed  by  Germany,  in  order  to  avoid  con- 
flicts." ^  The  Chinese  residents  in  the  leased  territory  are 
entitled  to  enjoy  the  protection  of  the  German  Government, 
"  provided  they  conduct  themselves  in  conformity  with  law 
and  order."  Chinese  ships  of  war  and  merchant  vessels 
are  to  be  treated  in  the  same  manner  as  those  of  other 
nations  friendly  to  Germany.  In  the  convention  of  March 
15-27,  1898,  respecting  the  lease  of  Port  Arthur  and  Tal- 
ienwan  to  Russia  for  twenty-five  years  from  the  date  of 
signature,^  it  is  stipulated  that  "  the  lease  is  under  no  cir- 
cumstances to  infringe  upon  the  rights  of  the  Emperor  of 
China  as  sovereign  owner  of  the  territory  leased."  ^     It  is 

^  This  is  translated  from  the  original  Chinese  text.  The  German  text 
would  read  in  English :  "  In  order  to  avoid  the  possibility  of  conflicts, 
the  Imperial  Chinese  Government  will  not  exercise  supreme  power 
(Hoheitsrechte)  in  the  leased  territory  during  the  term  of  the  lease, 
but  will  leave  the  exercise  of  the  same  to  Germany.  "  Hoheitsrechte  " 
is  translated  as  "  rights  of  sovereignty "  in  Pari.  Papers,  China,  no.  i 
(1899),  p.  69. 

'  The  lease  of  these  two  ports  and  certain  adjacent  territories  with 
the  rights  and  privileges  appertaining  thereto  was  transferred  by 
Russia,  with  the  consent  of  China,  to  Japan  by  article  5  of  the  treaty 
of  Portsmouth,  September  5,  1905 ;  and  the  transfer  was  confirmed 
by  China  under  article  i  of  the  treaty  with  Japan  of  December  22,  1905. 

^  The  passages  of  the  Convention  here  quoted  are  translated  from 
the  original  Chinese  text.  The  English  translation  printed  in  Pari. 
Papers,  China,  no.  i  (1899),  p.  128,  does  not  seem  to  have  been  made 
from  the  original  Chinese  or  Russian  text. 


254  THE  STATUS  OF  ALIENS  IN  CHINA  [376 

further  stipulated  that  Chinese  committing  offenses  within 
the  leased  territory  "  shall  be  sent  to  the  nearest  Chinese 
authority  to  be  punished  according  to  law."  in  conformity 
with  the  arrangement  provided  in  the  Russian  treaty  of 
Tientsin  (i860)  ;  that  Talienwan,  except  a  certain  portion 
thereof,  "  is  to  be  treated  as  an  open  port  and  merchant 
vessels  of  the  various  nations  may  enter  freely;"  and  that 
Chinese  and  Russian  war  vessels  are  entided  to  use  the 
naval  port  of  Port  Arthur  and  the  naval  base  in  Talienwan 
to  the  exclusion  of  the  war  vessels  of  other  powers.  The 
convention  of  May  27,  1898,  for  the  lease  of  Kwongchow- 
wan  to  France  is  similar  to  that  for  the  lease  of  Kiaochow 
to  Germany.  The  French  convention  stipulates  that  the 
lease  is  to  last  for  ninety-nine  years,  and  to  enable  the 
French  Government  to  establish  therein  a  naval  station  with 
a  coaling-depot,  but  that  "  this  establishment  is  not  to 
affect  China's  rights  of  sovereignty  over  the  added  terri- 
tory." which  "  will  be  governed  and  administered  during 
the  ninety-nine  years  of  lease  by  France,  in  order  to  avoid 
any  possible  conflict  between  the  two  countries."  Within 
the  leased  territory  Chinese  people  may  continue  to  reside 
and  carry  on  their  business  and  occupations  under  the  pro- 
tection of  France  as  long  as  they  respect  her  laws  and  regu- 
lations. Chinese  ships  and  those  of  other  friendly  powers 
"  are  to  be  treated  in  the  leased  territory  as  in  the  open 
ports  of  China,"  but  the  anchorage  "  is  to  be  exclusively  re- 
served for  French  and  Chinese  ships  of  war,  the  latter  in 
the  state  of  neutrality  only."  Finally,  Weihaiwei  was 
leased  to  Great  Britain  under  the  convention  of  July  i, 
1898,  "  for  so  long  a  period  as  Port  Arthur  shall  remain 
in  the  occupation  of  Russia."  ^     Within  the  leased  ground 

Since  Port  Arthur  now  docs  not  remain  in  the  occupation  of 
Russia,  the  lease  of  Weihaiwei  would  seem  to  have  expired  by  its  own 
limitation. 


377]  PORTS  AND.  FOREIGN  SETTLEMENTS  255 

"  Great  Britain  shall  have  sole  jurisdiction;"  but  it  was  also 
agreed  that  within  the  walled  city  of  Weihaiwei  Chinese 
officials  shall  continue  to  exercise  jurisdiction  except  so  far 
as  may  be  inconsistent  with  naval  and  military  require- 
ments for  the  defense  of  the  territory  leased;  and  that, 
further,  "  Chinese  vessels  of  war  whether  neutral  or  other- 
wise shall  retain  the  right  to  use  the  waters  herein  leased 
to  Great  Britain." 

Such  were  the  provisions  of  the  conventions  of  lease. 
The  first  question  that  arose  about  foreign  subjects  within 
the  leased  territory  was :  Were  they  entitled  to  continue  to 
enjoy  therein  the  rights  of  extraterritorial  jurisdiction 
which  they  had  enjoyed  prior  to  the  execution  of  the 
lease?  It  might  have  been  expected  that  the  lessee  powers 
were  not  anxious  to  admit  such  a  jurisdiction  within  the 
territory  they  had  leased  from  China ;  and  the  other  Euro- 
pean states,  not  having  large  interests  in  China,  were  natur- 
ally indifferent.  The  two  powers  which  were  most  con- 
cerned in  the  solution  of  the  question  were  Japan  and  the 
United  States ;  and  these  held  contrary  opinions  on  the  sub- 
ject. The  Japanese  Government  maintained  that  jurisdic- 
tion was  an  essential  part  of  sovereignty  and  could  not  pass 
with  a  mere  lease,  that  sovereignty  over  the  leased  territory 
having  been  expressly  reserved  by  China,  jurisdiction  over 
such  territory  remained  where  it  had  been,  and  that  the 
jurisdiction  which  Japan  had  by  treaty  acquired  over  her 
subjects  and  their  property  in  China  could  not  be  affected 
by  China's  treaty  with  a  third  power.  In  holding  this 
view  Japan,  in  1899,  solicited  the  support  of  the  United 
States  Government;  but  the  latter,  apparently  not  having 
as  yet  conceived  the  policy  which  its  Secretary  of  State, 
John  Hay.  announced  in  his  circular  telegram  of  July  3, 
1900,^  to  the  surprise  of  the  world,  decided  to  pursue  a 

•  "  We  adhere  to  the  policy  initiated  by  us  in   1857,"  reads  the  tele- 


256  THE  STATUS  OF  ALIENS  IN  CHINA  [378 

different  course.  Accordingly,  it  declined  to  share  the  view 
held  by  Japan,  and  on  February  3,  1900,  Mr.  Hay  in- 
formed Air.  Conger,  minister  to  China,  of  the  conclusion 
which  the  Department  of  State,  on  advice  of  its  solicitor,^ 
had  reached  on  the  subject,  namely, 

That  the  intention  and  effect  of  China's  foreign  leases  hav- 
ing apparently  been  the  relinquishment  by  China  during  the 
term  of  the  leases  and  the  conferment  upon  the  foreign  power 
of  all  jurisdiction  over  the  territory,  such  relinquishment  and 
transfer  of  jurisdiction  would  seem  also  to  involve  the  loss  by 

gram,  "of  peace  with  the  Chinese  nation,  of  furtherance  of  lawful 
commerce,  and  of  protection  of  lives  and  property  of  our  citizens  by 
all  means  guaranteed  under  extraterritorial  treaty  rights  and  by  the 
law  of  nations.  The  policy  of  the  Government  of  the  United  States  is 
to  seek  a  solution  which  may  bring  about  permanent  safety  and  peace 
to  China,  preserve  Chinese  territorial  and  administrative  entity,  pro- 
tect all  rights  guaranteed  to  friendly  powers  by  treaty  and  interna- 
tional law,  and  safeguard  for  the  world  the  principle  of  equal  and  im- 
partial trade  with  all  parts  of  the  Chinese  Empire." — For.  Rel.,  1901, 
appendix  ix,  p.  12. 

^  The  opinion  rendered  by  the  solicitor  of  the  Department  of  the 
State,  January  27,  1900,  quotes  in  full  articles  21,  24  and  25  of  the 
American  treaty  of  1844,  articles  11  and  24  of  the  treaty  of  1858,  and 
article  4  of  the  treaty  of  1880;  makes  a  brief  but  scarcely  complete 
summary  of  the  conventions  of  lease  with  Great  Britain,  Russia,  and 
Germany,  respectively,  and  then  continues : 

"  As  it  is  expressly  stipulated  in  the  leases  that  China  retains  sov- 
ereignly over  the  territory  leased,  it  could  doubtless  be  asserted  that 
such  territory  is  Chinese  territory  and  that  the  provision  of  our  treaties 
with  China  granting  consular  jurisdiction  are  still  applicable  therein. 
But  in  view  of  the  express  relinquishment  of  jurisdiction  by  China, 
I  infer  that  the  reservation  of  sovereignty  is  merely  intended  to  cut 
off  possible  future  claims  of  the  lessees  that  the  sovereignty  of  the 
territory  is  permanently  vested  in  them." 

Here  follows  the  statement  which  is  substantially  identical  with  that 
contained  in  Mr.  Hay's  instructions  to  Mr.  Conger,  and  already  quoted 
above.  The  opinion  closes  with  this:  "All  of  the  powers,  with  the  ex- 
ception of  Japan,  have  acquiesced  in  this  view,  and  their  consuls  ac- 
credited to  China  will  not  attempt  to  exercise  jurisdiction  in  any  of 
the  leased  territory." — For.  Rel.,  1900,  p.  387. 


379]  PORTS  AND  FOREIuN  SETTLEMENTS  257 

the  United  States  of  its  right  to  exercise  extraterritorial  con- 
sular jurisdiction  in  the  territories  so  leased;  while,  as  you 
remark,  as  these  territories  have  practically  passed  into  the 
control  of  peoples  whose  jurisprudence  and  methods  are  akin 
to  our  own,  there  would  seem  to  be  no  substantial  reason  for 
claiming  the  continuance  of  such  jurisdiction  during  the  for- 
eign occupancy  or  tenure  of  the  leased  territory. 

Mr.  Hay,  therefore,  asked  Mr.  Conger,  if  he  found  the 
western  powers  to  be  of  the  same  opinion  as  to  their  own 
consuls  in  similar  situations,  to  instruct  the  United  States 
consuls  in  districts  adjacent  to  the  foreign  leased  terri- 
tories, "  that  they  have  no  authority  to  exercise  extrater- 
ritorial consular  jurisdiction  or  to  perform  ordinary  non- 
judicial consular  acts  within  the  leased  territory  under 
their  present  Chinese  exequaturs." 

As  against  these  views  of  the  United  States  it  may  not 
be  difficult  to  argue  that  the  leases  made  by  China  as  pro- 
vided in  the  several  conventions  do  not  alter  the  nationality 
of  the  territory  leased  nor  necessarily  mean  "  the  relin- 
quishment by  China  during  the  term  of  the  leases  and  the 
conferment  upon  the  foreign  power  (in  each  case)  of  all 
jurisdiction  over  the  territory."  Specific  and  substantial 
rights  of  jurisdiction  over  Weihaiwei,  and  of  use  of  all  the 
leased  territories  and  waters  for  military,  or  naval  pur- 
poses, or  for  both,  are  expressly  reserved  by  China  in  the 
several  conventions  along  with  the  uniform  reservation  of 
her  general  rights  of  sovereignty  over  such  leased  terri- 
tories and  waters. 

Nor  will  it  be  difficult  to  urge  that  the  intention  of  the 
leases  w^as  the  reverse  of  what  has  been  attributed  to  them 
by  the  Government  of  the  United  States.  As  far  as  China 
is  concerned,  it  could  not  reasonably  be  claimed  that  she 
intended  to  concede  more  than  the  language  of  the  several 
conventions  of  lease  explicitly  provides.      Tt  must  be  re- 


258  THE  STATUS  OF  ALIENS  IN  CHINA  [380 

membered  that  China  made  these  leases  of  territory,  not 
out  of  her  own  pleasure  or  free  will,  but  under  threats  of 
immediate  invasion.  She  was  a  victim  at  once  of  foreign 
aggression  and  international  jealousy.  The  operations  of 
the  German  marines  and  troops  on  the  coast  of  Shangtung 
Province,  the  demonstrations  of  the  British  squadron  in 
the  Gulf  of  Pe-Chili  and  those  of  the  French  fleet  in  the 
Bay  of  Kwangchow-wan  are  well-known  as  a  matter  of 
history.  As  regards  the  lease  made  to  Russia,  the  cir- 
cumstances under  which  it  was  granted  were  no  less  press- 
ing. In  his  telegraphic  report  to  the  Marquis  of  Salisbury, 
March  24,  1898,  Sir  C.  MacDonald,  the  British  minister  at 
Peking,  stated : 

I  saw  Yamen  this  afternoon.  They  said  that  Russian  Gov- 
ernment has  informed  them  that  they  cannot  consider  question 
of  Port  Arthur  and  Talienwan  apart,  and  insist  on  lease  of 
both  places  being  granted  to  Russia  before  the  27th  March, 
failing  which  Russia  will  take  hostile  measures.  Chinese  Gov- 
ernment are  therefore  forced,  against  their  will,  to  give  way.^ 

It  would,  therefore,  be  nearer  the  truth  to  say  that  the  in- 
tention of  China,  in  granting  the  leases  to  the  four  powers, 
was,  not  to  relinquish  "  all  jurisdiction  "  over  the  leased 
districts,  but  to  concede  as  little  of  it  as  possible.  At  any 
rate,  the  conventions  of  the  leases  should  not  be  liberally  in- 
terpreted, as  they  seem  to  have  been  by  the  Government  of 
the  United  States,  it  being  a  generally  accepted  rule  of  the 
law  of  nations  that  international  servitudes  on  national 
territory,  of  which  character  the  leases  in  question  undoubt- 
edly are,  must  be  strictly  construed  against  the  state  or 
states  enjoying  them.^ 

*  Par!.  Papers,  China,  no.  i    (1898),  p.  53. 

'"These  [the  servitudes  enumerated]  nnd  such  like  privileges  or  dis- 
abilities must,  however,  be  set  up  by  treaty  or  equivalent  agreement; 


381]  PORTS  AND  FOREIGN  SETTLEMENTS  259 

Again,  if  the  intention  of  the  lessee  powers  be  inquired 
into,  it  will  be  found  to  have  been,  not  to  acquire  the  leased 
districts  as  part  of  their  respective  national  dominions  and 
therefore  to  exercise  absolute  control  over  them  for  all 
purposes,  but  only  for  military  and  political  purposes.  In 
other  words,  the  territories  and  waters  leased  had  been 
coveted  by  the  lessee  states  on  account  of  their  strategic 
value,  and  for  the  gain  of  prestige  and  influence  which 
would  come  to  them  as  the  result  of  their  military  control 
of  these  important  strongholds.  That  such  was  the  inten- 
tion of  the  lessee  powers  would  seem  to  be  clear  from  the 
text  of  the  conventions  of  lease  themselves,  in  each  of 
which  the  purpose  of  the  lessee  state  is  expressly  declared  to 
be  the  obtainment  for  its  troops  of  the  right  to  passage 
through  the  leased  districts  or  the  establishment  of  a  naval 
base  or  a  coaling  station  within  them  for  the  use  of  its 
fleet.  This  is  particularly  true  of  the  lease  of  Port  Arthur 
and  Weihaiwei.  Russia  wanted  to  have  Port  Arthur  solely 
for  its  strategic  value  and  Great  Britain  objected  to  its 
possession  by  Russia  for  that  very  reason.  The  British 
Government  was  willing  to  let  Russia  lease  Talienwan  as 
an  ice-free  commercial  port,  but  as  to  her  proposal  to  ac- 
quire Port  Arthur,  it  employed  every  pacific  means  within 
its  control  to  defeat  it.^    It  was  only  when  the  British  Gov- 

they  are  the  creatures  not  of  law  but  of  compact.  [Here  follows  an 
enumeration  of  customary  servitudes.]  In  their  legal  aspects  there  is 
only  one  point  upon  which  international  servitudes  call  for  notice. 
They  conform  to  the  universal  rule  applicable  to  'jura  in  re  aliena'. 
Whether  they  be  customary  or  contractual  in  their  origin,  they  must 
be  construed  strictly.  If,  therefore,  a  dispute  occurs  between  a  ter- 
ritorial sovereign  and  a  foreign  power  as  to  the  extent  or  nature  of 
rights  enjoyed  by  the  latter  within  the  territory  of  the  former,  the 
presumption  is  against  the  foreign  state,  and  upon  it  the  burden  lies 
of  proving  its  claim  beyond  doubt  or  question." — W.  E.  Hall,  Inter- 
national Law  (Sth,  Oxford,  1904),  p.  159. 
^  "  Her  Majesty's  Government  on  their  part  would  not  regard  with 


26o  THE  STATUS  OF  ALIENS  IN  CHINA  [382 

eminent  found  the  resources  of  its  diplomacy  exhausted 
and  its  efforts  still  unsuccessful  in  frustrating  the  Russian 
project  that  it  felt  the  necessity  of  occupying  Weihaiwei, 
a  port  equally  valuable  as  Port  Arthur  in  strategic  posi- 
tion, at  the  expense  of  China,  in  order  to  maintain  the  so- 
called  balance  of  power  at  Peking/  In  short,  the  intention 
of  the  four  European  powers  in  leasing  the  territories  in 
question  was,  evidently,  to  acquire  military  control  over 
them  so  as  to  preserve  their  relative  positions  in  China,  and 
not  to  take  them  as  an  outright  cession  and  during  the 

any  dissatisfaction  the  lease  by  Russia  of  an  ice-free  commercial  har- 
bor, connected  by  rail  with  the  trans-Siberian  Railway  which  is  now 
under  construction.  Questions  of  an  entirely  different  kind  are  opened 
if  Russia  obtains  control  of  a  military  port  in  the  neighborhood  of 
Peking.  Port  Arthur  is  useless  for  commercial  purposes,  its  whole 
importance  being  derived  solely  from  its  military  strength  and  stra- 
tegic position,  and  its  occupation  would  inevitably  be  considered  in  the 
East  as  a  standing  menace  to  Peking  and  the  commencement  of  the 
partition  of  China.  The  military  occupation  or  fortification  of  any 
other  harbor  on  the  same  coast  or  in  the  Gulf  of  Pechili  would  be 
open  to  the  same  objections  with  almost  equal  force." — Marquis  of 
Salisbury  to  Sir  N.  I.  Conor,  March  22,  1898,  tel.,  Pari  Papers,  China, 
no.  I   (1898),  p.  52. 

'  On  March  25,  1898,  when  the  lease  of  Port  Arthur  was  known  to 
have  been  made  to  Russia  by  China,  Lord  Salisbury  telegraphed  to  Sir 
C.  AlacDonald  the  following  instructions:  "Balance  of  power  in  Gulf 
of  Pechili  is  materially  altered  by  surrender  of  Port  Arthur  by  Yamen 
to  Russia.  It  is,  therefore,  necessary  to  obtain,  in  the  manner  you  think 
most  efficacious  and  speedy,  the  refusal  of  Weihaiwei  on  the  departure 
of  the  Japanese.  The  terms  should  be  similar  to  those  granted  to 
Russia  for  Port  Arthur.  British  fleet  is  on  its  way  from  Hong  Kong 
to  Gulf  of  Pechili."— Per/.  Papers,  China,  no.  i   (1898),  p.  54. 

Apprehensive,  however,  lest  Germany  might  feel  its  commercial  in- 
terest in  Shantung  jeopardized  by  the  British  occupation  of  Weihaiwei, 
Lord  Salisbury,  on  March  26th,  authorized  Sir  F.  Lascelles,  British 
Ambassador  at  Berlin,  by  telegraph,  to  explain  the  reasons  to  the  Ger- 
man foreign  office  and  added:  "We  do  not  wish  to  interfere  with  the 
interests  of  Germany  in  that  region.  The  action,  in  our  opinion  very 
regrettable,  of  Russia  with  respect  to  Port  Arthur,  has  compelled  us 
to  take  the  course  we  are  now  pursuing." — Ibid.,  p.  54. 


383]  PORTS  AND  FOREIGN  SETTLEMENTS  26 1 

term  of  the  leases  to  stamp  them  with  their  own  national 
character,  nor,  again,  to  alter  the  status  of  foreigners 
within  such  territories  as  guaranteed  by  the  treaties  be- 
tween China  and  their  respective  states. 

On  the  contrary,  with  respect  to  the  lease  of  Port  Arthur 
and  Talienwan,  the  intention  of  Russia  was  expressly 
stated  to  be  to  leave  the  leased  territories  as  integral  parts 
of  the  Chinese  dominions,  and  to  confirm  rather  than  to 
diminish  the  treaty-rights  of  foreigners  within  them.  At 
the  very  outset  of  the  Russian  proposal  to  lease  from  China 
Port  Arthur  and  Talienwan,  Great  Britain,  while  objecting 
to  the  leasing  of  Port  Arthur  on  account  of  its  being 
"  notoriously  useless  for  commercial  purposes,"  stated  to 
Russia  through  her  ambassador  at  St.  Petersburg  that  the 
British  Government  attached  "  supreme  importance  .  .  . 
to  the  maintenance  of  all  rights  and  privileges  secured  to 
Great  Britain  by  their  existing  treaties  with  China,"  and 
solicited  of  her  declarations  in  the  nature,  of  an  assurance 
that  these  rights  and  privileges  would  be  respected  by 
Russia  in  the  event  of  her  obtaining  a  lease  of  the  two 
aforesaid  places.  In  response  to  the  British  representation 
the  Russian  Government  seems  to  have  made  certain  dec- 
larations which  were  even  of  a  broader  scope  than  those 
desired  by  Great  Britain.  As  summarized  later  by  Lord 
Salisbury, 

These  declarations  are  to  the  effect  that  Port  Arthur  as  well 
as  Talienwan,  shall  be  open  to  foreign  trade  like  other 
Chinese  ports ;  that  Russia  has  no  intention  of  impairing  the 
sovereignty  of  China ;  and  that  she  will  respect  all  the  rights 
and  privileges  secured  by  existing  Treaties  between  China 
and  other  foreign  Powers — a  pledge  which  not  only  includes 
equality  of  commercial  treatment,  but  also  the  right  of  foreign 
ships  of  war  to  visit  ports  which,  though  leased  to  Russia, 
are  still  to  remain  integral  portions  of  the  Chinese  Empire. 


262  THE  STATUS  OF  ALIENS  IN  CHINA  [384 

The  despatch/  of  which  the  passage  just  quoted  forms  a 
part,  was  read  by  Sir  N.  O'Conor,  the  British  ambassador 
at  St.  Petersburg,  to  Count  Mouravieff,  the  Russian  min- 
ister for  foreign  afifairs.  under  instruction  from  Lord  Sahs- 
bury.  and  a  copy  of  the  same  was  also  left  with  the  min- 
ister, within  four  days  after  Russia  had  announced  to  the 
powers  her  lease  of  Port  Arthur  and  Talienwan  and,  with- 
out making  any  reference  to  the  use  she  was  to  make  of 
Port  Arthur,  the  opening  of  Talienwan  to  foreign  com- 
merce. In  a  note  of  March  22  (April  3),*  acknowledging 
receipt  of  the  note  of  April  i,  from  Sir  N.  O'Conor,  em- 
bodying the  instructions  of  March  28,  from  Lord  Salis- 
bury, Count  Mouravieff  briefly  reviewed  the  conversations 
which  he  had  had  with  the  British  ambassador  on  the  ques- 
tion of  the  lease,  and  while  disclaiming  any  declaration  on 
his  part  of  the  purpose  of  insuring  the  opening  of  Port 
Arthur  to  foreign  commerce,  confirmed  his  previous  state- 
ments as  to  the  intention  of  Russia,  in  taking  the  lease,  to 
preserve  the  territorial  integrity  of  China  and  the  rights 
of  the  powers  guaranteed  by  treaties  with  China.  His  lan- 
guage is  worth  quoting: 

You  asked  me  whether  in  taking  Port  Arthur  and  Talien- 
wan on  lease,  Russia  intended  to  maintain  the  rights  of  sover- 
eignty of  China,  and  to  respect  the  Treaties  existing  between 
that  Empire  and  other  States.  I  answered  in  the  affirmative, 
and  I  added  that  we  hoped,  moreover,  to  obtain  the  opening 
of  the  port  of  Talienwan,  which  would  offer  great  advantages 
to  all  nations.  Now  that  the  negotiations  with  China  have 
brought  about  the  desired  result,  all  that  is  entirely  confirmed. 
The  substitution  of  the  Russian  usufruct  for  possession  by 
China  of  Port  Arthur  and  Talienwan  has  not  aflfected  in  any 
way  the  interests  of  the  other  Powers  in  those  regions;  quite 

'  Pari  Papers,  China,  no.  i   (1898),  p.  56.  *  Ibid.,  p.  64. 


385]  PORTS  AND  FOREIGN  SETTLEMENTS  263 

on  the  contrary,  thanks  to  the  friendly  agreement  arrived  at 
between  the  two  great  neighboring  Empires,  a  port  hitherto 
closed  is  open  to  the  trade  of  the  whole  world,  and  placed  un- 
der exceptionally  favorable  conditions,  as  it  is  destined  to  be 
connected  with  the  great  line  of  the  Siberian  Railway. 

Then  f ollow^s  the  most  significant  statement : 

As  regards  all  other  points,  the  respect  for  the  sovereign 
rights  of  China  implies  the  scrupulous  maintenance  of  the 
status  quo  existing  before  the  lease  of  the  ports  which  have 
been  conceded. 

Here,  then,  is  a  voluntary  explanation  by  an  interested 
party  to  the  convention  for  the  lease  of  Port  Arthur  and 
Talienwan,  March  15-27,  1898,  of  the  intent  and  purport 
of  the  clause  contained  therein  reserving  China's  rights  of 
sovereignty  over  the  leased  territories,  an  explanation 
which  seems  to  have  escaped  the  notice  of  the  State  De- 
partment at  Washington,  or  perhaps  \vas  not  available  to 
it  in  1900. 

Furthermore,  the  same  note  states : 

Your  Excellency  having  observed  to  me  that  men-of-war 
and  merchant  ships  are,  in  certain  cases  provided  for  by  the 
Treaties,  admitted  even  into  the  closed  ports  of  China,  I  an- 
swered that  accordingly  this  facility  would  be  assured  to  them 
by  the  Regulations  in  force. 

It  follows  that  Port  Arthur  will  be  open  to  English  ships 
on  the  same  conditions  as  it  has  always  been. 

It  w^ould  seem  also  that  by  admitting  this  right  of  foreign 
ships  to  visit  Port  Arthur  as  well  as  Talienwan,  Russia 
made  its  intention  in  taking  the  lease  still  more  manifest  as 
being  not  to  curtail  the  rights  of  foreigners  in  the  leased 
districts,  but  to  preserve  the  status  quo  existing  before  the 
lease,  and  implicitly  admitted  the  contention  of  Lord  Salis- 


264  ^^^  STATUS  OF  ALIENS  IN  CHINA  [386 

bury  that  the  ports  in  question,  "  though  leased  to  Russia, 
are  still  to  remain  integral  portions  of  the  Chinese  Empire." 
In  view  of  these  circumstances  it  is  significant  that  sub- 
sequently, when  a  Japanese  subject  was  arrested  at  Port 
Arthur  upon  suspicion  of  being  a  military  spy  and  Japan 
declined  to  admit  the  right  of  Russia  to  exercise  jurisdic- 
tion over  the  prisoner,  the  Russian  Government  readily 
yielded  to  Japan  and  ordered  that  the  subject  be  delivered 
to  Japanese  authorities.^  It  is  equally  significant  that  when, 
subsequent  to  the  consummation  of  the  lease  of  Port 
Arthur  and  Talienwan,  the  Russian  legation  at  Peking  is- 
sued a  circular  note  to  the  other  legations  in  the  Chinese 
capital,  stating  that  passports  of  foreigners  going  to  these 
two  places  should  be  previously  revised  by  a  Russian  con- 
sulate in  China,  the  Russian  Government,  on  being  in- 
formed of  the  measure,  instructed  its  representative  in  Pek- 
ing to  revoke  the  measure  announced,  the  reason  for  this 
order  of  revocation  apparently  being  that  under  the  treat- 
ies between  China  and  foreign  powers  passports  are  re- 
quired only  for  extended  journeys  into  the  interior." 

§  4.  Ports  of  Call 

Foreign  vessels  are  also  permitted  to  carry  on  a  limited 
traffic  at  certain  localities  along  the  great  rivers  designated 
as  ports  of  call.  Six  places  on  the  Yangtze  River  have 
been  opened  as  such  ports  under  the  Chef 00  agreement  of 
September  13,  1876,  subject  to  certain  regulations  therein 

*  F.  E.  Hinckley,  American  Consular  Jurisdiction  in  the  Orient 
(Washingfon,  D.  C,  1906),  p.  177. 

*  With  reference  to  this  question  Lord  Salisbury  instructed  Sir  C. 
MacDonald  by  telegraph,  June  2,  1898,  that  he  "should,  in  acknowledg- 
ing receipt  of  the  circular  from  the  Russian  Charge  d'Affaires,  call 
attention  to  the  fact  that,  under  Article  IX  of  Treaty  of  Tientsin,  pass- 
ports are  required  for  extended  journey  into  the  interior  only." — ParL 
Papers,  China,  no.  i  (1899),  p.  in. 


387]  PORTS  AND  FOREIGN  SETTLEMENTS  265 

outlined  and  four  on  the  West  River  under  the  agreement 
with  Great  Britain  of  February  4,  1897,  under  the  same 
regulations  as  those  on  the  Yangtze  River ;  while  the  treaty 
of  Shimonoseki,  April  17,  1895,  provides  that  steam  navi- 
gation for  vessels  under  the  Japanese  flag  for  the  convey- 
ance of  passengers  and  cargo  shall  be  extended  to  the  places 
on  the  Yangtze  River  from  Ichang  to  Chungking  and  on 
the  Woosung  River  and  the  Canal  from  Shanghai  to  Soo- 
chow  and  Hangchow,  subject  to  the  rules  and  regulations 
in  force  governing  the  navigation  of  the  inland  waters  of 
China  by  foreign  vessels. 

With  reference  to  the  places  it  declares  to  be  ports  of 
call,  the  Chefoo  agreement  stipulates  that 

these  places  being  all  places  of  trade  in  the  interior,  at  which, 
as  they  are  not  open  ports,  foreign  merchants  are  not  legally 
authorized  to  land  or  ship  goods ;  steamers  shall  be  allowed  to 
touch  for  the  purpose  of  landing  or  shipping  passengers  or 
goods ;  but  in  all  instances  by  means  of  native  boats  only ;  and 
subject  to  the  regulations  in  force  affecting  native  trade. 

It  also  provides  that 

produce  accompanied  by  a  half-duty  certificate  may  be  shipped 
at  such  points  by  the  steamers,  but  may  not  be  landed  by 
them  for  sale. 

It  further  provides  that 

foreign  merchants  will  not  be  authorized  to  reside  or  open 
houses  of  business  or  warehouses  at  the  places  enumerated 
as  ports  of  call. 

According  to  a  list  revised  to  April,  191 1,  by  the  British 
legation  at  Peking,  there  are  in  China  twenty-five  ports  of 
call  and  sixty-eight  places  opened  to  foreign  trade  by  treaty 
or  by  Imperial  decree.^ 

'  (a)    Treaty  ports   and   places  opened  by   China  to   foreign  trade: 


266  THE  STATUS  OF  ALIENS  IN  CHINA  [388 

§  5.   The  Legation  Quarter  in  Peking 

The  right  of  the  diplomatic  corps  in  Peking  to  fortify 
for  defensive  purposes  the  quarter  which  it  occupies  and 
that  of  each  legation  to  establish  a  permanent  guard  for  its 
own  security  were  demanded  of  China  in  the  joint  note  of 
the  Powers,  December  22,  1900/  as  one  of  the  conditions 
necessary  for  the  resumption  of  friendly  relations.  This 
as  well  as  the  remaining  conditions  was  accepted  by  the 
Chinese  plenipotentiaries  in  their  communication  of  Janu- 
ar}'^  16,  1901,"  under  imperial  sanction.  The  final  protocol 
of  September  7,  1901,  in  article  VII  confirms  this  accept- 
ance, and  provides  further  that 

the  quarter  occupied  by  the  legations  shall  be  considered  as 
one  specially  reserved  for  their  use  and  placed  under  their 
exclusive  control,  in  which  Chinese  shall  not  have  the  right  to 
reside,  and  which  may  be  made  defensible. 

Aigun,  Amoy,  Antung,  Canton,  Changchun,  Changsha,  Chefoo,  Chi- 
nan,  Ching-wang-tao,  Chinkiang,  Choutsun,  Chungking,  Chutsychie, 
Dairen  (Dalny),  Fakumen,  Feng  Huang  Cheng,  Foochow,  Hailar, 
Hangchow,  Hankow,  Harbin,  Hun  Chun,  Ichang,  Kiao-chau,  Kirin, 
Kiukiang,  Kiungchow  (or  Hoihow),  in  Hainan,  Kong  Kung  market. 
Kongmoon,  Kowloon  (port  of  entry  for  Canton),  Kuangchouwan, 
Lappa  (port  of  entry  for  Canton),  Liao  Yang,  Lunchingtsun,  Lung- 
ning,  Newchwang  (or  Yingkou),  Ningpo,  Ninguta,  Paitsaokou,  Pak- 
chow,  Mandchourie  (Manchuli),  Mengtze.  Mukden,  Nanking,  Nan- 
hoi  (or  Pei-hai),  Samshui,  Sanhsing,  Sanluao  (or  Funing),  Shanghai, 
Shasi,  Siminting,  Soochow,  Swatow  (or  Chao  Chow),  Szemao,  Ta- 
tung-kou,  Teng-yueh  (Momein),  Tiehling,  Tientsin,  Toutaokou,  Tsi- 
tsi-har,  Tungchiang-tsu,  Weihaiwei.  Wei-hsien,  Wenchow,  Wuchow, 
Wuhu,  Wusung,  Yochow. 
(b)   Ports  of  call: 

1.  On  the  Yangtze,  for  passengers  and  cargo,  Hokou,  Luchikou, 
Nganking  (Anking),  Tatung,  Wu-Sueh. 

2.  On  the  Yangtze,  for  passengers,  Hwangchow,  Hwang-tze-kang, 
I-chang  (not  to  be  confounded  with  Ichang  the  Treaty  Port),  Kiang- 
yin. 

'  Hertslet's  China  Treaties,  ii,  p.  1167.  *lbid.,  p.  1171. 


389]  PORTS  AND  FOREIGN  SETTLEMENTS  267 

Under  subsequent  arrangements  the  total  strength  of  the 
legation  guard  at  Peking  has  been  fixed  at  2000  men 
furnished  by  the  leading  Powers. 

Within  the  quarter  thus  established  reside  the  members 
and  servants  of  the  foreign  legations,  their  guards,  and  a 
number  of  foreigners,  most  of  whom  are  employed  in  the 
service  of  the  Chinese  Government  or  are  carrying  on  a 
limited  trade.  There  are  also  a  few  provision  stores  and  a 
hotel.  Since,  however,  the  quarter  is  established  primarily 
for  the  use  and  security  of  the  foreign  legations  it  cannot 
be  considered  as  a  place  open  to  foreign  trade  generally.^ 

The  policing  and  general  administration  of  the  Legation 
Quarter  are  entrusted  to  a  municipal  council  instituted  and 
controlled  by  the  diplomatic  corps.  Each  legation  contri- 
butes to  the  expenses  for  the  administration  of  the 
quarter  in  proportion  to  the  surface-area  which  it  occupies 
within  it." 

^Article  X  of  the  commercial  treaty  with  Japan,  October  8,  1903,  pro- 
vides that  "  in  case  of  and  after  the  complete  withdrawal  of  the  for- 
eign troops  stationed  in  the  province  of  Chili  and  of  the  Legation 
guards,  a  place  of  international  residence  and  trade  will  be  forthwith 
opened  by  China  itself."  By  annexes  6  and  7  to  the  treaty  the  con- 
tracting parties  agree  to  certain  principles  as  to  the  control  and  ad- 
ministration of  the  proposed  international  place  of  residence  and  trade 
which  are  in  accord  with  those  governing  places  opened  to  foreign 
trade  by  China  voluntarily.  An  interesting  point  of  the  agreement  is 
that  when  the  place  is  established,  "  the  foreigners  who  have  been  re- 
siding scattered  both  within  and  without  the  city  walls  shall  be  re- 
quired to  remove  their  residence  thereto  and  they  shall  not  be  allowed 
to  remain  in  separate  places  and  thereby  cause  inconvenience  in  the 
necessary  supervision  by  the  Chinese  authorities ;"  and  that,  again, 
those  who  do  remove  before  a  fixed  period  "  shall  not  be  entitled  to 
compensation  "  for  the  land  and  buildings  held  by  them  and  taken  by 
the  authorities. 

*  Dipl.  Rev.  (1906),  no.  16,  pp.  8-12;  32  Jour.  d.  Dr.  inter,  prire 
(1905).  p.  854. 


CHAPTER  XIV 
Travel  and  Passports 

Under  the  rules  made  by  the  local  authorities  with  the 
foreign  consuls  in  pursuance  of  the  provisions  of  the 
American  and  French  treaties  of  1844/  foreigners  were 
accorded  the  privilege  of  going  on  excursions  from  the 
ports  open  to  trade  to  a  distance  not  exceeding  100  li,  and 
for  a  period  not  exceeding  5  days.  Beyond  these  limits 
they  were  forbidden  to  proceed.  Notwithstanding  the  for- 
mal prohibition  provided  in  the  treaties,  however,  foreigners 
clandestinely  penetrated  into  the  interior  of  the  country, 
where  they  were  sometimes  ill  treated  alike  by  the  people 
and  the  authorities.  Accordingly,  in  February,  1858,  the 
British  and  French  plenipotentiaries  in  China  addressed  an 
identical  note  to  the  chief  minister  of  the  council  of  state 
in  which  they  pronounced  the  opinion  that  it  was  "  almost 
impossible  to  execute  this  clause  of  the  treaties  "  and  stated 
that  the  right  to  travel  in  the  Empire  under  proper  pass- 
ports delivered  by  their  consuls  and  legalized  by  the  Chinese 
authorities  should  be  extended  to  foreigners." 

This  right  was  formally  granted  by  China  to  foreigners 
for  the  first  time  in  article  IX  of  the  British  treaty,  June 
26,  1858,  which  reads  in  part: 

British  subjects  are  hereby  authorized  to  travel,  for  their 
pleasure  or  for  purposes  of  trade,  to  all  parts  of  the  interior, 
under  passports  which  will  be  issued  by  their  Consuls,  and 

^  Articles  xxvii  and  xxviii,  respectively. 
'  S.  Ex.  Doc.  30,  36  cong.,  i  sess.,  164. 

268  [390 


39 1 ]  TRAVEL  AND  PASSPORTS  269 

countersigned  by  the  local  authorities.  The  passports,  if  de- 
manded, must  be  produced  for  examination  in  the  localities 
passed  through.  If  the  passport  be  not  irregular,  the  bearer 
will  be  allowed  to  proceed.  If  he  be  without  a  passport,  or 
if  he  commit  any  offence  against  the  law,  he  shall  be  handed 
over  to  the  nearest  Consul  for  punishment. 

A  substantially  identical  provision  was  inserted  in  article 
VIII  of  the  French  treaty  signed  the  following  day,  and  it 
has  since  been  copied  in  a  number  of  treaties  concluded  with 
other  foreign  Powers. 

The  bringing  of  a  passport  is  obligatory  upon  every  for- 
eign male  adult  traveler  into  the  interior  of  the  land,'^  ex- 
cept in  the  case  of  short  excursions  within  the  fixed  limits. 
Failure  to  bring  a  passport  makes  him  liable  to  be  sent 
back  to  the  nearest  consulate  of  his  nation  for  supervision 
or  prosecution.  Under  article  VI  of  the  German  treaty, 
March  31,  1880,  German  subjects  discovered  traveling  in 
the  interior  w'ithout  a  regular  passport  may  be  taken  back 
to  the  nearest  German  Consulate,  to  be  restrained,  and  are 
"  in  addition  to  this,  liable  to  a  fine  up  to  300  taels."  The 
only  other  treaty  which  contains  a  like  provision  is  that 
with  Japan  concluded  July  21,  1896.^ 

Traveling  passports  are  issued  by  a  consulate  or  the  lega- 
tion of  the  applicants'  nationality,  and  are  vised  either  by 
the  Waiwu  Pu  or  the  Governor  of  Peking,  or  the  Pro- 
vincial authorities.     Article  XI  of  the  Austria-Hungarian 

1  The  practice  of  the  American  legation  is  to  issue  only  one  passport 
for  a  married  man  with  his  family. 

'  The  enforcement  of  the  clause  against  traveling  without  passports 
would  seem  to  be  very  difficult.  Cases  of  its  violation,  especially  by 
missionaries,  occur  frequently.  In  1902  such  a  large  number  of  for- 
eigners were  detected  traveling  in  Northwestern  China  that  the  Waiwu 
Pu  found  it  necessary  to  issue  a  circular  note  to  the  foreign  legations 
reminding  them  of  the  existence  of  the  treaty  prohibition,  and  urging 
them  to  be  more  vigilant  in  enforcing  it  upon  their  own  nationals. — 8 
Kuanghsu's  New  Laws  and  Ordinances,  49-51. 


270  THE  STATUS  OF  ALIENS  IN  CHINA  [392 

treaty.  September  2,  1869,  provides  that  "  tlie  Imperial  and 
koyal  consul  shall  be  careful  to  grant  passports  to  respect- 
able persons  only.^  To  the  crews  of  foreign  vessels  the 
provisions  conferring  the  right  to  travel  under  passport  are 
generally  declared  to  be  inapplicable.  With  passports  for- 
eigners may  travel  into  the  interior  "  for  pleasure  "  or  "  for 
purposes  of  trade."  The  latter  phrase  means  the  bringing 
of  imported  goods  into  the  inland  for  sale  or  the  purchase 
of  native  produce  there  for  shipment  at  a  port.  The  term 
pleasure  would  seem  to  be  susceptible  of  a  very  broad  inter- 
pretation, but  several  kinds  of  enterprises,  which  may  seem 
to  be  pleasurable,  have  been  declared  not  to  be  included 
within  its  purport  and  meaning.  Thus  hunting  game  is. 
under  the  instructions  of  the  Tsungli  Yamen  issued  in 
1876,  not  recognized  as  a  pleasure,  and  passports  issued  for 
that  purpose  will  not  be  vised."  Purposes  which  are  ob- 
viously not  of  a  commercial  or  pleasurable  character  are  of 
course  not  recognized  as  giving  the  intending  traveler  the 
right  to  passports.  In  1904  a  passport  vised  by  the  Hupeh 
authorities  was  recalled  by  the  Waiwu  Pu  for  the  purpose 
of  crossing  out  the  words  "  for  prospecting  mines  "  con- 

1  In  a  note  to  Mr.  Reid,  U.  S.  minister  to  China,  June  6,  1858.  Baron 
Gros,  the  French  minister  suggested  that  the  four  powers  in  China 
should  adopt  "  a  good  system  of  passports,"  and  that  their  diplomatic 
agents  or  consuls  should  issue  them  to  "  persons  offering  all  the  guar- 
antees desirable"  and  the  latter  should  punish,  without  distinction, 
every  infraction  of  established  regulations,  to  which  the  bearer  of  the 
passport  should  bind  himself  in  writing  to  submit. 

Mr.  Rcid,  in  his  reply  of  July  27,  1858,  stated  that  Congress  alone 
could  confer  jurisdiction  over  American  citizens  in  order  to  enforce 
penalties  for  traveling  in  the  interior  without  passports,  and  added: 
"  The  granting  by  an  American  consul  of  passports  to  others  than 
American  citizens  is  inadmissible;  and  here,  also,  in  the  opinion  of  the 
undersigned,  the  consent  of  a  party  taking  a  passport  would  confer 
no  jurisdiction  on  a  consular  court." — S.  Ex.  Doc.  30,  36  Cong.  Sess., 
392-393- 

*  70  New  Collection  (General),  29. 


393]  TRAVEL  AND  PASSPORTS  2/7 

tained  therein.  In  1905  the  officials  of  Chekiang  were  in- 
structed by  the  Waiwu  Pu  to  strike  the  words  "  to  investi- 
gate the  Bhuddhist  religion  "  from  a  passport  presented  by 
the  Japanese  Consul  to  be  vised  by  them/  Taking  surveys 
is  likewise  not  a  lawful  enterprise  to  pursue  while  traveling 
in  the  interior  under  passports;  and  in  1908,  upon  the  dis- 
covery of  a  party  of  Japanese  students  making  topogra- 
phical maps  in  Mongolia  while  ostensibly  traveling  under 
passports  for  pleasure,  the  Chinese  board  of  foreign  affairs 
issued  a  circular  note  to  the  foreign  travelers  in  the  in- 
terior to  be  prohibited,  and  at  the  same  time  sent  restrictions 
to  the  provinces  to  act  accordingly.^ 

Under  the  treaties  foreigners  may  travel  under  passports 
to  "  all  parts  of  the  Empire."  To  this  comprehensive 
phrase  there  are  two  exceptions  expressly  provided  in  a 
number  of  compacts :  traveling  passports  may  not  be  issued 
for  visiting  the  capital  city  of  Peking  for  purposes  of  trade,^ 
nor  for  places  in  insurrection  for  any  purpose.  In  a  cir- 
cular note  sent  to  the  foreign  representatives  in  Peking  in 
1883  the  Tsungli  Yamen  stated  that  thereafter  passports 
issued  by  the  legations  and  consulates  in  China  to  persons 
desiring  to  travel  in  the  interior  should,  instead  of  vaguely 
stating  "  the  18  provinces,"  clearly  designate  the  points  to 
be  visited  and  the  route  to  be  taken,  in  order  to  facilitate 
examination  and  render  protection  of  the  travelers  easier, 
and  it  also  requested  their  co-operation.  All  the  foreign 
legations  assented  to  the  proposal  and  acceded  to  the  re- 
quest except  the  American  minister,  who  replied  by  stating 
that  according  to  the  laws  of  his  country  passports  issued 

*  Dil)l.  Rev.  (1905),  no.  5.  p.  8. 

^8  Kuanghsu's  New  Laws  and  Ordinances,  51. 

3  The  eighth  of  the  Rules  of  Trade  agreed  upon  by  Great  Britain, 
Britain,  November  8,  1858,  and  the  eighth  of  the  rules  annexed  to  the 
Danish  treaty,  July  13,  1863. 


272  THE  STATUS  OF  ALIENS  IN  CHINA  [394 

for  traveling  purposes  usually  specified  three  or  four  pro- 
vinces which  the  applicants  might  propose  to  visit,  and  that 
if  a  new  passport  was  to  be  required  for  each  trip  to  a  place 
in  the  interior  there  would  be  great  inconvenience,  especi- 
ally to  those  who  resided  far  away  from  the  United  States 
legation.  Accompanied  by  a  statement  of  the  exceptions 
raised  by  the  American  Minister,  instructions  were  sent  by 
the  Tsungli  Yamen  to  the  provincial  authorities  to  see  to 
it  that  the  new  requirements  were  observed.^ 

Duly  issued  traveling  passports,  like  the  customs  certi- 
ficates and  passes,  are  generally  valid  for  a  period  of  thir- 
teen Chinese  months,  reckoned  from  the  day  of  issue,  at  the 
end  of  which  period  they  must  be  returned  to  the  authorities 
who  issued  them.  In  failing  to  comply  with  this  require- 
ment the  bearers  may  be  deprived  of  the  privilege  of  apply- 
ing for  passports  in  future.  If  passports  are  lost,  new  ones 
may  be  obtained  on  application  to  the  proper  legation  or 
consulate;  but  if  the  declaration  of  loss  is  false,  it  renders 
the  declarant  liable  to  be  sent  back  to  the  nearest  consulate 
of  his  country  for  punishment,  or  for  confiscation  of  the 
goods,  the  transporting  of  which  was  the  object  of  the  trip 
into  the  interior  thus  illegally  undertaken. - 

Foreign  travelers  under  passports  are  not  required  to 
report  their  arrival  to  the  authorities  of  every  locality  they 
reach  on  their  way  or  to  present  their  passports  for  exam- 
ination; they  are  required  to  exhibit  their  passports  only 
when  a  demand  to  do  so  is  made  by  the  local  authorities. 

'  70  New  Collection  (Gen.).  .30-31. 

*  See  section  7  of  the  special  stipulations  annexed  to  the  German 
Convention  of  March  31,  1880,  and  also  article  vi  of  the  Japanese 
treaty  of  July  21,  1896.  Article  xiv  of  the  British  treaty  of  October 
23,  1869,  which  was  not  ratified,  limited  the  period  within  which  pass- 
ports were  returnable  to  one  year  and  Rule  iv,  annexed  to  the  treaty, 
gave  one  month's  grace  in  addition.  Passports  issued  by  the  United 
States  legation  are  valid  for  two  years. 


395]  TRAVEL  AND  PASSPORTS  273 

At  one  time  the  Chinese  Government  sought  to  make  it 
obHgatory  upon  foreign  travelers  to  deliver  their  passports 
for  inspection  at  each  place  they  should  visit  or  pass 
through.  Thus  on  November  10,  1893,  ^^e  Tsungli  Yamen 
sent  a  note  ^  to  Mr.  Denby,  the  American  minister  and  dean 
of  the  diplomatic  corps,  embodying  the  observation  of  the 
Taotai  of  Chingchow,  Ichang,  and  Shihnan  that  since  he 
entered  upon  the  duties  of  his  office,  about  eight  months  to 
date,  there  had  been  199  foreigners  traveling  through  his 
jurisdiction,  that  none  of  them  had  reported  their  arrival 
to  the  authorities  therein,  and  that  "  should  trouble  occur 
to  those  who  have  not  reported  their  arrival,  the  respon- 
sibility of  giving  protection  to  them  should  not  rest  on  the 
shoulders  of  officials  of  the  departments  or  districts."  The 
Yamen  observed  in  the  note  that  "  foreigners  traveling  with 
passports  should  report  to  the  local  authorities  of  the  place 
on  their  arrival,  to  the  end  that  due  protection  may  be 
accorded  them  from  time  to  time,"  and  requested  the  min- 
ister of  the  United  States  to  communicate  with  his  col- 
leagues, with  a  view  to  the  consideration  of  the  question 
presented  and  to  the  adoption  of  a  feasible  plan  of 
action.  Accordingly,  the  diplomatic  corps  held  a  number 
of  meetings  to  consider  the  contents  of  the  note,  but  "  after 
mature  deliberation  "  it  came  to  the  conclusion  that  it  could 
not  accede  to  the  proposition  of  the  Chinese  Government. 
In  a  note  to  the  Yamen,  December  5,  1893,-  conveying  the 
decision  of  the  foreign  representatives,  three  reasons  were 
given  for  it,  namely,  that  the  proposition  was  "  imprac- 
ticable "  since  "  a  heavy  burden  would  be  laid  upon  for- 
eigners by  such  a  rule,  and  the  penalty  suggested  by  the 
taotai  for  failure  to  comply  with  it.  to  wit,  the  forfeiture 
of  protection,  is  by  no  means  admissible  " ;  that  it  was  ex- 

^  For.  Rel.  1893,  p.  242.  '  For.  Rel..  1894.  p.  153. 


274  THE  STATUS  OF  ALIENS  IN  CHINA  [396 

posed  to  an  '*  insuperable  "  objection  to  wit,  that  it  "  would 
materially  change  the  purport  of  the  treaties;  and  finally 
that  "  it  is  questionable,  also  whether  the  proposed  rule 
would  accomplish  any  good  purpose  "  since  "  the  presence 
of  foreigners  in  any  locality  in  the  interior  is  immediately 
known  to  all  the  population,  the  officials  included,  and 
travelers  perfectly  understand  that,  in  case  of  trouble,  they 
have  the  right  to  apply  to  the  officials  for  protection  and 
that  it  is  the  duty  of  the  local  authorities  to  protect  them." 
The  Yamen  was  not  satisfied  with  these  reasons  and  again 
urged  the  foreign  representatives  to  put  the  requirements 
into  effect,  but  its  renewed  efforts  met  with  no  more  suc- 
cess than  its  initial  attempt.^ 

Foreigners  traveling  in  the  interior  of  China  with  pass- 
ports are  under  the  treaties  entitled  to  the  protection  of 
the  authorities  of  all  the  places  through  which  they  pass 
but  they  have  no  right  to  demand  from  them  gratis  money 
and  supplies.  In  1869  two  American  citizens,  travel- 
ing without  passports  from  Canton  to  Kinkiang,  posed 
as  British  officials  and  compelled  a  number  of  mag- 
istrates through  whose  districts  they  passed  to  settle  their 
own  accounts  such  as  the  expenses  for  hiring  boats  and 
carts.  On  being  apprized  of  this  case  the  Tsungli  Yamen 
at  once  instructed  the  Governor  of  Kiangsi  Province  and 

^  Mr.  Denby  himself  entertained  on  the  subject  a  view  which  was 
pronounced  by  the  State  department  to  be  judicious,  and  which  seems 
to  be  very  fair.     It  is  this: 

"On  the  traveler's  arrival  at  any  departmental  (chow)  or  district 
Chsien)  city  he  might  be  required  to  report  his  arrival  to  the  local 
magistrate,  as  well  as  the  route  which  he  proposes  to  follow  on  his 
departure  therefrom. 

"  The  traveler  having  given  notice  of  his  movements  to  the  Chief 
Magistrates  in  the  important  cities,  it  would  be  their  duty  to  notify  all 
the  subordinate  officials,  in  the  places  through  which  the  traveler 
would  pass,  of  the  fact  that  he  was  en  route  and  there  would  be  no 
excuse  for  a  failure  to  afford  protection." — For.  Rel.,  1893,  p.  241. 


397]  TRAVEL  AND  PASSPORTS  275 

the  Viceroy  at  Canton  to  reprimand  those  magistrates  who 
had  improperly  paid  the  bills  of  the  two  American  travelers 
and  ordered  the  Taotai  at  Kinkiang  to  request  the  United 
States  at  that  port  to  punish  them  for  their  misconduct/ 
The  Yamen's  instructions  further  state: 

As  to  the  future,  when  foreigners,  whether  on  an  official  mis- 
sion or  for  traveling,  proceed  to  various  parts  in  the  inland,  the 
local  officials  in  the  places  which  they  traverse  shall  examine 
their  passports  and  allow  them  to  proceed.  If  the  travelers 
be  foreign  officials,  they  may  be  taken  good  care  of,  but  their 
traveling  expenses  shall  not  be  paid  by  the  local  authorities. 

In  1902  the  Waiwu  Pu  issued  general  instructions  to  the 
provincial  authorities  enjoining  them  from  supplying  for- 
eign missionary  travelers  gratis  with  funds,  carts,  horses, 
attendants  and  the  like."  In  1903  a  German  sailor,  travel- 
ing from  Russia  to  Szechuan  through  Shensi,  extorted  from 
the  local  officials  by  threats  of  force  money  and  provisions 
for  himself  and  his  horses,  so  successfully  that,  as  he 
boasted  himself,  from  the  Russian  border  to  Szechuan  he 
had  not  spent  a  penny  from  his  own  pocket.  The  German 
minister,  having  read  an  account  of  the  exploits  of  his  coun- 
tryman, inquired  of  the  Waiwu  Pu  if  it  was  correct  and 
declared  that  German  travelers  in  China  were  entitled  to 
protection  and  not  support  by  the  local  authorities.  In  his 
report,^  as  was  asked  of  him,  the  Governor  of  Shensi  stated 
that  the  account  was  true  and  added  this  explanation: 

Because  the  officials  at  the  various  places  did  not  understand 
how  to  handle  foreign  affairs  and  were  ignorant  of  the  exist- 
ence of  treaties,  they  suffered  these  cruel  and  insolent  extor- 
tions. They  should  at  once  train  themselves  to  prevent  the 
recurrence  of  such  cases.     I  have  ordered  that  in  future  when- 

'  70  New  Collection  (General),  29.  ''Ibid.,  p.  32. 

'  16  Neiv  Collection  (Germany),  24. 


276  THE  STATUS  OF  ALIENS  IN  CHINA  [398 

ever  foreigners  pass  through  the  province  on  travel  they  are 
entitled  only  to  protection  assured  them  by  treaty,  and  that 
they  must  not  be  furnished  by  the  officials  with  money  and 
supplies  at  public  expense.  If  foreigners  attempt  to  extort 
money  or  demand  supplies  in  violation  of  treaty  stipulations, 
no  matter  what  their  nationality,  the  case  should  be  imme- 
diately reported  to  me  in  order  that  I  may  notify  the  Waiwu  Pu 
to  request  the  minister  of  his  country  to  take  due  action. 

It  may  be  observed  that  the  treaties  provide  a  more  sum- 
mary means  of  checking  such  illegal  conduct  on  the  part  of 
foreign  travelers  in  the  interior  than  reporting  the  facts 
to  their  legation  for  action.  Any  foreigner  committing  an 
offense  in  the  interior,  whether  a  violation  of  treaty  pro- 
visions or  a  breach  of  peace,  may  be  arrested,  secured  from 
escape,  and  sent  to  the  nearest  consulate  of  his  coimtry  for 
punishment.  A  vigilant  exercise  by  the  local  authorities  of 
this  power  expressly  sanctioned  by  the  treaties  would  seem 
to  be  adequate  for  the  purpose  of  preventing  the  abuse  by 
foreigners  of  the  privilege  of  traveling  in  the  interior. 


CHAPTER  XV 

The  Alien  Merchant  in  the  Interior  of  China 
§  I.  Sale  of  imported  goods  in  the  Interior 

The  right  of  the  foreign  merchant  in  China  to  carry  on 
trade  at  the  open  ports  generally  has  already  been  described 
in  connection  with  the  discussions  of  the  status  of  ports 
and  other  places  open  to  foreign  commerce.  In  addition, 
the  foreign  merchant  is  under  the  treaties  entitled  to  prose- 
cute a  limited  trade  in  the  interior  of  China.  He  may  sell 
at  an  inland  market  foreign  merchandise  brought  from  a 
port  or  purchase  Chinese  goods  there  for  transportation 
to  a  port. 

If  a  foreign  merchant  desires  to  send  his  imported 
articles  to  an  inland  market  he  has  the  option  of  clearing 
his  good  of  all  transit  duties  leviable  on  the  way  by  pay- 
ment of  a  commutation  transit  tax  or  duty  equal  to  one- 
half  of  the  import  duty  in  respect  of  dutiable  articles,  and 
two  and  half  a  per  cent  upon  the  value  in  respect  of  duty- 
free articles.  On  payment  of  either  amount,  as  the  case 
may  be,  a  certificate  is  issued  by  the  maritime  customs, 
which  entitles  the  goods  to  exemption  from  all  further  in- 
land charges.  If  the  merchant  desires  to  accompany  his 
imported  merchandise  into  the  interior  he  is  required  to 
obtain  a  passport  for  himself,  as  in  all  other  cases  of  travel- 
ing in  the  inland.  If  he  charters  a  boat  or  desires  to  use 
his  own  for  the  purpose  of  transporting  the  merchandise 
inland  he  is  further  required  to  obtain  a  river  pass.  Fur- 
nished with  these  papers  he  may  proceed  to  the  interior  to 
sell  his  goods  wherever  he  thinks  fit. 

399]  277 


278  THE  STATUS  OF  ALIENS  IN  CHINA  [400 

§  2.  Purchase  of  native  produce  for  shipment  to  Chinese 
or  foreign  ports 
Where  a  foreign  merchant  desires  to  purchase  Chinese 
produce  or  goods  in  the  interior  for  transportation  to  an 
open  port,  it  has  always  been  necessary  for  him,  since  1861,^ 
to  obtain  through  his  consul  a  blank  memorandum  in  three 
detachable  parts,  in  each  of  which  the  merchant  is  required 
to  state  his  nationality,  the  description  of  produce  or  goods 
to  be  purchased,  the  first  barrier  of  entry  outward,  the  date 
of  their  arrival  there,  and  the  intended  port  of  shipment, 
and  finally  sign  his  own  name  to  a  statement  contained 
therein  in  the  nature  of  a  declaration  that  he  engages  to 
pay  the  commutation  transit  duty  leviable  on  the  pur- 
chased articles  at  the  barrier  nearest  to  the  port  of  ship- 
ment. On  receiving  a  duplicate  of  the  memorandum  the 
maritime  customs  issues  a  transit  certificate  containing  the 
name  and  nationality  of  the  merchant  and  a  description  of 
the  articles  to  be  purchased,  and  entitling  them,  when  the 
certificate  is  affixed  with  a  seal  by  the  first  barrier  of  entry 
outward,  to  exemption  from  all  charges  whatever  on  the 
way  to  the  last  barrier  behind  the  port  of  shipment.  With 
these  two  papers  the  trip  to  purchase  articles  in  the  interior 
may  be  commenced  by  a  Chinese  agent  of  the  merchant;  if 
the  merchant  himself  or  one  of  his  foreign  agents  under- 
takes the  trip  a  traveling  passport  for  purposes  of  trade 
is  further  necessary.  So  is  a  river  pass  if  the  merchant 
charters  a  boat  or  desires  to  use  his  own  for  conveying 
what  he  has  bought  to  an  open  port.  Meanwhile  the  cus- 
toms taotai  will  give  notice  to  the  authorities  of  the  first 
barrier  of  entry  outward  of  the  details  of  the  trip  being 

*  In  this  year  Sir  F.  W.  A.  Bruce  and  the  Tsungli  Yamen  entered 
into  an  agreement  which  formed  the  contents  of  the  Regulations  pro- 
mulgated by  the  same  British  minister,  October  30,  1861. — See  2  Herts- 
let's  Cliitia  Treaties,  633 ;  for  the  instructions  of  the  Yamen  in  pur- 
suance of  the  agreement,  see  67  New  Collection  (General),  35. 


40l]  THE  ALIEN  MERCHANT  279 

prosecuted/  When  the  merchant  or  his  agent  arrives  at 
this  barrier  with  his  purchased  goods  and  presents  the 
memorandum  and  the  transit  certificate,  the  authorities 
thereof  are  required  to  check  up  the  goods  with  those  de- 
scribed in  the  memorandum  as  to  description  and  quality,^ 
and  if  they  find  them  correct  they  will  afifix  the  certificate 
with  their  seal  and  return  it  to  the  person  in  custody  of  the 
goods.  One  part  of  the  memorandum  is  retained  by  the 
barrier,  another  must  be  immediately  forwarded  to  the 
maritime  customs  at  the  port  of  shipment,  and  the  third 
part  sent  at  the  end  of  ten  days  from  the  day  of  the  pre- 
sentation of  the  memorandum.  At  the  same  time  the 
merchant  or  his  agent  proceeds  on  his  trip  outward  with  his 
goods  and  the  transit  certificate,  the  latter  to  be  presented 
for  inspection  and  indorsement  at  every  barrier  he  passes 
through.  When  he  arrives  at  the  one  nearest  to  the  port 
of  shipment  the  goods  are  valuated  by  the  customs  officials 
sent  from  that  port  and  on  the  transit  duty  being  paid,  they 
are  allowed  to  be  forwarded  to  the  port.^ 

It  is  important  to  state,  however,  that  native  Chinese 
goods  purchased  by  foreign  merchants  in  the  interior  are 
entitled  to  the  protection  of  a  transit  certificate  only  when 
they  are  bona  fide  intended  for  exportation  to  a  foreign 
country ;  those  similarly  purchased  for  consumption  or  sale 

*  New  Collection  (General),  49-50. 

'  This  rule  has  been  strictly  enforced  since  1907  when  the  Superin- 
tendent of  the  Trade  of  the  Northern  Ports  issued  special  orders  to 
that  effect  under  instructions  from  the  Waiwu  Pu.  Prior  to  that  time 
foreign  merchants  purchasing  produce  in  the  interior  presented  no 
goods  for  inspection  at  the  first  barrier  of  entry  outward,  notably  at 
Changkia-kow,  but  merely  exchanged  a  sealed  certificate  for  the 
memorandum  surrendered  as  a  mere  formality. — 67  New  Collection 
(General),  40. 

'  The  form  of  the  various  papers  necessary  to  be  had  for  carrying 
imported  goods  into  the  interior  and  Chinese  produce  to  a  port  will 
be  found  in  17  Analytical  Compilation,  i  et  seq. 


28o  THE  STATUS  OF  ALIENS  IN  CHINA  [402 

in  open  ports  are  subject  to  all  the  barrier  charges,  leviable 
under  Chinese  regulations,  from  the  place  of  purchase  to 
the  port  of  destination.  Again,  Chinese  goods  purchased  in 
the  interior  and  brought  to  a  port  for  exportation  under 
the  protection  of  a  transit  certificate  are  further  required, 
as  also  are  Chinese  goods  purchased  in  open  ports  for  the 
same  purpose  and  free  from  transit  taxation,  to  pay  the 
tariff  export  duty  before  they  can  be  exported. 

§  3.  Treaty  limitations  upon  the  rights  of  the  alien 
merchant  in  the  Interior 

The  right  of  the  foreign  merchant  to  trade  in  the  interior 
is  limited  to  selling  his  imported  merchandise  and  purchas- 
ing Chinese  articles  for  transportation  to  an  open  port, 
under  conditions  which  have  just  been  described.  From 
the  language  of  the  treaty  provisions  it  seems  that  he  may 
not  buy  articles  of  foreign  origin  in  the  interior  and  bring 
them  out  to  a  port  nor  may  he  sell  at  any  place  except  in 
an  open  port  the  Chinese  produce  or  goods  he  has  purchased 
at  an  inland  market.  He  is  not  allowed  to  tarry  in  the 
interior  after  he  has  sold  his  imported  merchandise  or 
purchased  the  needed  articles  of  Chinese  origin.  He  is 
prohibited  to  establish,  anywhere  outside  of  the  places  open 
to  foreign  trade,  commercial  houses  or  shops  of  any  kind, 
including  branch  agencies  conducted  by  foreign  firms  or 
merchants  through  Chinese  subjects.  The  establishment 
of  permanent  warehouses  in  the  interior  for  the  storage 
of  articles  purchased  therein  or  brought  thereto  is  likewise 
prohibited.' 

'  The  prohibitions  stated  in  the  paragraph  above  are  either  neces- 
sarily implied  from  the  confinement  of  the  general  right  to  trade  to 
open  ports  in  some  treaties  and  expressly  provided  in  others,  such  as 
article  iii  of  the  treaty  with  the  Ne'.herlands,  October  16,  1863,  and 
article  xvi  of  the  treaty  with  Portugal,  December  i,  1887.  Great 
Britain,   in    1863,   through   its   representative  at    Peking,   expressed   its 


403J  T'HE  ALIEN  MERCHANT  281 

Prior  to  1905  these  prohibitions  had  been  loosely  en- 
forced and  as  a  consequence,  many  foreign  trading  estab- 
lishments had  clandestinely  gained  a  foothold  in  the  in- 
terior of  China ;  but  in  that  year  there  arose  a  case  which 
gave  occasion  for  the  strict  enforcement  of  the  treaty  pro- 
visions. One  Vul-na-ro,  an  Italian  subject,  had  opened  a 
saloon  in  Shihkiachong  in  Chili,  a  place  not  open  to  for- 
eign trade.  When  ordered  to  close  up  his  house  and  re- 
move from  the  place,  the  Italian  trader  appealed  to  his  min- 
ister at  Peking,  who  represented  to  the  Waiwu  Pu  by  stat- 
ing that  if  Vul-na-ro's  saloon  was  to  be  closed,  all  other 
foreign  trading  establishments  in  the  interior  should  have 
been  prohibited  from  the  very  beginning,  and  that  the 
Chinese  Government  not  having  done  so,  it  should  compen- 
sate Vul-na-ro  for  the  losses  which  might  be  sustained  by 
him  as  the  result  of  his  compliance  with  the  order  of  the 
local  authorities  to  close  up  his  saloon.  The  Waiwu  Pu 
in  its  reply  acknowledged  its  inability  to  see  any  reason  for 
holding  the  Chinese  Government  liable  to  pay  compensa- 
tion, stated  that  Vul-na-ro  would  be  given  six  weeks  to 
wind  up  his  accounts  and  leave  Shihkeachong  at  the  risk 
of  his  being  arrested  and  sent  to  the  nearest  Italian  Con- 
sulate for  punishment;  and  added  that  similar  orders  had 
been  issued  to  the  provinces  to  have  all  the  foreign  trading 
houses  or  shops  illegally  established  in  the  interior  closed 
up  and  compelled  to  remove  to  open  ports.     Thereupon  the 

concurrence  with  the  opinion  of  the  Tsungli  Yamen  that  under  the 
treaties  foreign  merchants  were  not  permitted  to  establish  companies 
or  warehouses  in  the  interior,  and  instructions  were  accordingly  sent 
by  the  Yamen  to  the  provincial  authorities. — For  the  instructions,  see 
67  New  Collection  (General),  35.  The  Japanese  treaty  of  April  17, 
189s,  in  article  vi,  confers  for  the  first  time  upon  Japanese  subjects 
and,  by  virtr.e  of  the  mo=t-favored-nation  clause,  upon  the  merchants 
of  other  nations  "  the  right  temporarily  to  rent  or  hire  warehouses " 
in  the  interior  "  for  the  storage  of  the  articles  so  purchased  or  trans- 
ported, without  the  payment  of  any  taxes  or  exactions  whatever." 


282  THE  STATUS  OF  ALIENS  IN  CHINA  [404 

Italian  minister  requested  a  settlement  of  the  general  ques- 
tion first  and  urged  the  Waivvu  Pu  not  to  proceed  to  close 
up  Vul-na-ro's  establishment  lest  there  might  arise  "  in- 
conveniences." But  the  Waiwu  Pu,  apparently  convinced 
of  the  correctness  of  its  own  stand  in  the  matter,  notified 
the  minister  that  the  Italian  establishment  in  Shihkiachong, 
an  inland  place,  was  put  up  "  obviously  in  contravention 
of  the  treaty  stipulations,"  that  the  Chinese  authorities 
could  never  consent  to  allow  it,  that  the  rule  of  limitation 
upon  the  right  of  foreign  merchants  to  trade  being  applied 
to  the  subjects  of  all  nations,  the  Italian  merchants  were 
not  subjected  to  any  discrimination  by  its  enforcement  upon 
them,  that  if  it  was  closed  by  the  authorities  after  the  lapse 
of  the  period  allowed  him  to  remove,  it  would  be  a  trouble 
invited  by  himself,  that  no  inconvenience  could  arise  out  of 
the  case,  and  finally  that  since  China  always  transacted  her 
international  affairs  in  accordance  wath  treaty  provisions, 
there  was  "  no  need  for  negotiating  a  special  arrangement 
on  the  question."  ^ 

§  4.  Conditions  under  zvhich  the  alien  merchant  may 
operate  railways  or  mines  in  the  Interior 

Independently  of  the  treaty  provisions,  foreign  mer- 
chants may,  however,  be  allowed  by  special  permission  of 
the  Chinese  Government  to  establish  their  business  in  the 
interior.  The  Imperial  Railway  Regulations  of  1904,  by 
article  2,  extend  to  foreign  subjects  or  citizens  the  privi- 
lege of  applying  for  an  authorization  to  build  railways  in 
China,  subject  to  the  condition,  applicable  to  them  alone, 
that  the  foreign  interests  in  a  railway  company  organized 
under  such  authorization  shall  not  exceed  fifty  per  cent 
of  its  total   capitalization.'-'    Under  article   X  of   the   Im- 

'  2,3  New  Collection  (Italy),  3-4. 

»  For  the  text  of  the  Railway  Regulations,  see  17  Kuanghsu's  New 
Laws  and  Ordinances,  8. 


405]  ^^^^  ALIEN  MERCHANT  283 

perial  Mining  Regulations  of  1907  subjects  of  treaty 
Powers,  except  certain  classes  of  them/  are  entitled  to  ap- 
ply for  permission  to  operate  mines  in  China,  in  the  interior 
as  well  as  at  the  open  ports,  and  to  hold  stocks  in  Chinese 
mining  companies,  subject  to  two  primary  conditions, 
namely  that  they  shall  observe  Chinese  laws,  and  that  they 
may  not  purchase  or  otherwise  own  mining  land  in  fee 
simple. 

The  language  of  the  provision  requiring  foreigners  oper- 
ating mines  in  the  interior  to  observe  Chinese  laws  seems 
peremptory  as  well  as  emphatic.     It  reads  thus : 

The  subjects  of  treaty  powers  who  voluntarily  cooperate  with 
Chinese  subjects  in  mining  enterprise  shall  be  held  to  have 
thereby  consented  to  observe  Chinese  laws,  to  submit  them- 
selves to  the  control  of  Chinese  authorities,  and  to  act  in  con- 
formity with  the  Mining  Regulations  now  in  force  or  to  be 
made  in  future,  and  other  kindred  laws,  such  as  the  Law  of 
Companies.  They  may  be  permitted  to  carry  on  the  neces- 
sary operations  only  if  they  really  observe  (the  foregoing  re- 
quirements).^ 

1  These  are  the  following:  (i)  Buddhists,  taoists,  and  members  of 
missionary  associations  who  pursue  religion  as  a  profession;  (2)  sub- 
jects of  non-treaty  powers  and  of  powers  which  do  not  reciprocally 
accord  the  same  privileges  to  Chinese  subjects;  (3)  foreigners  who  do 
not  observe  the  laws  of  China  and  those  who  have  once  been  guilty  of 
offences  against  the  Chinese  law  or  the  law  of  their  own  country;  (4) 
foreigners  who  are  in  the  service  of  foreign  Governments  or  of  the 
Chinese  Government;  (5)  those  who  have  held  offices  under  a  foreign 
Government  and  have  not  definitely  resigned  them ;  and  (6)  those 
who  may  be  denied  the  privilege  by  special  order  of  the  Chinese  Gov- 
ernment. Article  10  of  the  Mining  Regulations;  for  the  full  text  of 
which  see  16  Kuanghsu's  New  Laws  and  Ordinances,  92 ;  an  English 
translation  published  in  Tientsin,  in  1907,  under  the  title  of  "  The 
Revised  Mining  Regulations  and  Supplementary  Mining  Regulations 
of  China,"  though  useful,  does  not  seem  to  be  as  accurate  as  some 
readers  may  desire. 

*  Mining  Regulations  of  1907,  article  49. 


284  '^'^^^  STATUS  OF  ALIENS  IN  CHINA  [406 

Besides,  foreign  applicants  for  a  permit  to  open  mines  in 
China  are  required  to  take  out  a  testimonial  from  their 
consul  "  certifying  their  ability  really  to  observe  the  Regu- 
lations and  supplementary  Rules  made  or  to  be  made."  and 
also  give  a  bond  "  guaranteeing  their  constant  observ- 
ance "  of  the  same.  When  a  permit  to  engage  in  mining 
enterprise  is  granted  to  a  foreign  merchant  it  confers  upon 
him  the  status  of  a  "  mining  merchant,"  entitles  him  to  the 
especial  protection  of  the  local  authorities,  and  exempts 
him,  and  him  alone,  from  the  application  of  those  treaty 
provisions  which  require  foreigners  to  obtain  passports  for 
travel  into  the  interior,  and  which  prohibit  them  in  the  same 
region  to  hold  land,  rent  houses,  establish  trading  com- 
panies or  warehouses,  and  to  do  other  similar  acts.  In  re- 
spect of  all  other  foreigners,  including  those  who  desire  to 
go  into  the  interior  for  prospecting  or  working  in  mines, 
these  provisions  "  remain  in  full  force  and  without  the 
slightest  modification.^ 

It  is  interesting  to  note  further  the  modus  operandi  pro- 
vided in  the  Mining  Regulations  for  dealing  with  litigation 
involving  foreign  "  mining  merchants  "  and  crimes  com- 
mitted by  them.  In  the  former  case  the  usual  procedure 
as  prescribed  in  the  treaties  is  to  be  followed ;  that  is  to 
say,  such  foreign  merchants,  when  charged  with  a  crime, 
shall  be  arrested,  secured  from  escape,  and  transported  to 
the  nearest  consul  of  his  nation  for  punishment,  only  with 
this  added  provi.so :  that  if  the  judgment  rendered  by  the 
consul  does  not  meet  with  the  tacit  approval  of  the  Chinese 
authorities  and  satisfy  the  other  mining  merchants  in  the 
region  wherein  the  offense  was  committed,  then  the  sub- 
jects or  citizens  of  the  offenders'  nation  may  not  again  be 
allowed  to  apply  for  a  permit  to  open  mines  in  the  province.' 

1  Mining  Regulations  of  1907,  articles  59  and  63. 
'  Ibid.,  article  61. 


407]  ^^^^  ALIEN  MERCHANT  285 

In  civil  suits  a  more  direct  course  of  procedure  is  defined 
in  the  Regulations.  Whenever  foreign  merchants  co- 
operating with  Chinese  subjects  in  Mining  enterprise  in  the 
interior  have  monetary  litigation  with  a  Chinese  or  a  sub- 
ject of  another  country,  affecting  the  private  right  of  the 
two  parties,  "  the  Chinese  authorities  shall  decide  it  in  ac- 
cordance with  the  Chinese  law  and  established  rules  ",  ex- 
cept where  the  facts  of  the  case  are  peculiar  and  not  pro- 
vided for  in  the  laws  and  rules  in  force,  in  which  case  they 
shall  impartially  settle  it  "  according  to  the  laws  prevailing 
in  foreign  states  generally,  and  with  due  consideration  of 
the  state  of  Chinese  law."  ^ 

A  system  of  appeal  is  likewise  provided  by  the  Regula- 
tions in  cases  concerning  mining  affairs.  From  the  de- 
cision of  the  mining  deputy  in  the  district  in  which  the 
case  has  arisen  the  foreign  litigant  is  expressly  authorized 
to  appeal  to  the  general  mining  bureau  in  the  province ; 
if  still  dissatisfied,  he  may  bring  the  appeal  to  the  Provincial 
Judge,  the  Governor,  or  the  Viceroy,  and  thence  to  the 
Ministry  of  Agriculture,  Works  and  Commerce  in  Peking 
as  the  final  resort.  It  is  also  provided  that  "  no  minister 
or  consul  of  any  nation  may  intervene."  It  is  further  pro- 
vided that  wherever  appeal  may  be  brought  to,  the  case 
"  shall  be  decided  according  to  the  Regulations,"  that  only 
where  it  is  one  not  covered  by  express  provisions  in  the 
Regulations  "  the  mining  laws  of  foreign  states  may 
be  cited  as  the  basis  of  a  decision  ",  and  that  even  then 
the  rule  cited  "  must  not  be  contrary  to  the  principles  of 
the  Regulations."  ^ 

1  Mining  Regulations  of  1907,  article  60. 
*  Ibid.,  article  62. 


286  THE  STATUS  OF  ALIENS  IN  CHINA  [408 

§  5.  The  question  of  the  right  of  the  alien  merchant  to 
invest  in  Chinese  joint-stock  companies  es- 
tablished in  the  Interior 

May  foreigners  invest  in  Chinese  joint-stock  companies 
established  in  the  interior  of  China  other  than  those  en- 
gaged in  mining  and  railway  enterprises?  It  will  be  re- 
membered that  the  British  treaty  of  September  5,  1902.  by 
Article  IV  indirectly  authorizes  British  subjects  to  invest 
capital  in  Chinese  companies  and  that  the  corresponding 
article  in  the  Japanese  treaty  of  October  8,  1903,  in  like 
manner  permits  Japanese  subjects  conjointly  with  Chinese 
subjects,  and  vice  versa,  to  "  organize  a  partnership  or 
company  for  a  legitimate  purpose;  "  in  neither  provision  is 
there  any  limitation  as  to  the  locality  of  the  companies  or 
partnerships  organized  or  to  be  organized  in  China. 
Article  LVII  of  the  Chinese  Law  of  Companies/  which 
was  sanctioned  and  promulgated  by  an  imperial  decree  of 
January,  1904,  provides: 

Subjects  of  foreign  states  who  hold  stocks  in  companies  estab- 
lished by  Chinese  subjects  shall  be  held  to  have  consented  to 
observe  and  conform  to  the  Chinese  Commercial  Law  and  the 
Chinese  Law  of  Companies.^ 

It  is  to  be  noted  that  the  language  of  this  provision,  like 
that  of  the  treaty  stipulations  referred  to  above,  indirectly 
permits  foreigners  to  hold  interests  in  Chinese  companies 
without  making  a  distinction  as  to  companies  established  in 
the  interior  and  those  in  the  open  ports.  Whether  or  not 
the  distinction,  not  expressly  provided  in  the  article  under 
consideration,  should  be  recognized  in  the  interpretation  of 
its  language,  is  a  question  which  elicited  a  sharp  difference 

'  For  the  text  of  this  law,  see  16  Kuanghsu's  New  Laws  and  Ordi- 
nances. 
» Ibid.,  p.  6. 


409]  THE  ALIEN  MERCHANT  287 

of  opinion  in  1906  between  the  Viceroy  of  the  Kiangnan 
Provinces  and  the  Board  of  Agriculture,  Works  and  Com- 
merce in  Peking. 

The  Viceroy  maintained  that  the  article  in  question  con- 
fers upon  foreigners  the  privilege  of  holding  stocks  only 
in  Chinese  companies  established  in  the  ports  open  to  for- 
eign commerce  and  not  in  those  located  in  the  interior. 
In  support  of  this  proposition  he  assigned  a  number  of  rea- 
sons. Industries  carried  on  in  the  interior  of  China  af- 
fect the  means  of  living  of  the  Chinese  people  at  large.  In 
the  course  of  negotiating  the  commercial  treaty  of  1902  with 
Great  Britain  Sir  James  L.  Mackey,  the  British  minister, 
insisted  for  a  long  period  of  time  upon  China's  accord- 
ing British  merchants  the  liberty  to  establish  manufactur- 
ing companies  in  all  parts  of  her  empire  and  it  was  only 
after  a  most  persistent  refusal  that  the  Chinese  negotiators 
succeeded,  finally,  in  limiting  the  exercise  of  that  liberty 
to  the  open  ports.^  The  privilege  of  holding  stocks  in 
Chinese  manufacturing  companies  established  in  the  in- 
terior is,  moreover,  the  same  as  that  of  operating  industries 
in  the  interior,  inasmuch  as  foreign  merchants  could  there- 
by not  only  share  with  Chinese  merchants  profits  derived 
from  such  industries  but  could  even,  by  reason  of  their  in- 
vestments, control  such  Chinese  companies  in  the  interior, 
or,  by  fraudulent  combination  with  unscrupulous  Chinese 
merchants,  establish  independent  factories  in  the  interior 
for  themselves.     Therefore,  to  interpret  article  LVII  in 

*  The  only  reference  to  the  subject  is  made  in  section  9  of  article 
viii  of  the  treaty  which  reads :  "  An  excise  equivalent  to  double  the 
import  duty  as  laid  down  in  the  Protocol  of  1901  is  to  be  charged  on 
all  machine-made  yarn  and  cloth  manufactured  in  China,  whether  by 
foreigners  at  the  Open  Ports  or  by  Chinese  anywhere  in  China.  .  .  . 
The  same  principle  and  procedure  are  to  be  applied  to  all  other  pro- 
ducts of  foreign  type  turned  out  by  machinery,  whether  by  foreigners 
at  the  Open  Ports  or  by  Chinese  anywhere  in  China." 


288  THE  STATUS  OF  ALIENS  IN  CHINA  [410 

question  so  as  to  confer  upon  foreigners  the  privilege  of 
holding  stocks  in  Chinese  companies  located  in  the  inland 
other  than  those  engaged  in  mining  and  railway  enterprises 
would  be,  on  the  part  of  China,  to  give  away  a  right,  which 
has  not  been  asked  of  her  or  otherwise  impaired,  and  which, 
on  the  contrary,  has  been  carefully  reserved  to  her  by  the 
British  treaty  of  commerce  of  1902. 

The  Board,  on  the  other  hand,  entertains  a  contrary 
view  of  the  subject.  It  admits  the  necessity  of  protecting 
Chinese  capitalists  engaged  in  industrial  enterprises  in  the 
interior  from  foreign  competition,  but  it  holds  that  that 
necessity  is  fully  met  by  the  restrictive  clauses  in  the  vari- 
ous commercial  codes  limiting  the  proportion  of  foreign 
interests  in  Chinese  companies.  On  the  legal  side  of  the 
question  the  Board  holds  that  article  IV  of  the  British 
treaty  of  September  5,  1902,  and  the  identically  numbered 
article  in  the  Japanese  treaty  of  October  8,  1903.  authorize 
the  investment  of  foreign  capital  in  Chinese  enterprises 
without  recognizing  distinctions  based  upon  the  locality  of 
their  seat  of  establishment  and  that  article  LVII  of  the 
Law  of  Companies  was  enacted  with  due  consideration  of 
these  treaty  stipulations.  It  adds  that  the  privilege  of 
holding  stocks  in  Chinese  companies  situated  in  the  interior 
is  different  from,  and  does  not  carry  with  it,  the  privilege 
of  operating  manufacturing  establishments  in  such  region, 
and  that  if  foreign  stockholders  in  Chinese  companies 
should,  by  fraudulent  devices  of  one  kind  or  another,  gain 
full  control  of  such  companies  or  maintain  independent 
factories  in  the  interior,  such  foreigners  will  be  prosecuted 
in  accordance  with  treaty  provisions.' 

*  For   the   correspondence   on   the   question    exchanged    between    the 
Viceroy  and  the  Board,  see  66  New  Collection  (General),  11-14. 


CHAPTER  XVI 

The  Christian  Missionary  ^ 

§  I.  Toleration  and  Preaching  of  Christianity 

In  China,  prior  to  the  commencement  of  extensive  in- 
tercourse with  foreign  states,  religious  toleration  by  the 
Government  had  been  the  rule  and  the  interdicts  occasion- 

*  The  fourth  of  the  "  additional  articles,"  concluded  with  the  United 
States,  July  28,  1868,  provides  "  that  citizens  of  the  United  States  in 
China  of  every  religious  persuasion  .  .  .  shall  enjoy  entire  liberty  of 
conscience,  and  shall  be  exempt  from  all  disability  or  persecution  on 
account  of  their  religious  faith  or  worship  in  China."  It  is  clear  that 
under  this  article  citizens  of  the  United  States  in  China  have  the  right 
to  profess  and  worship  any  religion  they  wish,  but  it  does  not  seem 
clear  that  they  have  the  right  to  preach  any  religion  they  like.  Accord- 
ing to  the  Chinese  Government,  at  any  rate,  foreign  missionaries  of 
other  creeds  than  Christianity  not  being  expressly  and  specifically  pro- 
vided for  in  the  treaties,  can  not  be  recognized  by  it  as  such,  and  are 
not  entitled  to  the  same  measure  of  protection  as  is  accorded  to  Chris- 
tian  evangelists. 

The  question  was  raised  in  1905  by  Mr.  Yasuya  Uchida,  the  Japanese 
minister  in  Peking,  who  represented  to  the  Waiwu  Pu  that  there  were 
many  Japanese  Buddhist  missionaries  in  China,  preaching  the  teach- 
ings of  Buddha  and  exhorting  men  to  do  good,  and  asked  that  they 
be  protected  to  the  same  extent  as  were  the  Christian  missionaries, 
citing  in  support  of  his  request  the  most  favored  nation  clause  in  the 
Japanese  treaty  of  July  21,  1896.  The  Waiwu  Pu  declined  to  accept 
this  view,  stating  that  evangelization  by  Christian  workers  in  China 
was  expressly  authorized  by  treaty,  and  that  the  clause  cited  by  the 
minister  referred  only  to  privileges  of  a  commercial  nature,  and  had 
nothing  to  do  with  questions  of  missionary  enterprise.  In  a  later  note 
the  minister  renewed  his  reference  to  the  most  favored  nation  clause 
and,  after  citing  the  twenty-ninth  article  of  the  treaty  of  June  18, 
1858,  between  China  and  the  United  States  and  the  fourth  article  of 
the  treaty  of  July  28,  1868,  between  the  same  powers,  argued  that  the 
411]  289 


290  THE  STATUS  OF  ALIENS  IN  CHINA  [412 

ally  fulniinated  against  the  profession  and  preaching  of 
exotic  creeds  had  been  the  exceptions,  brought  about  mostly 
by  the  indiscretion  of  their  teachers.  Not  to  speak  of  other 
foreign  religions,  Christianity  itself  had  prospered  in  China 
since  very  early  times,  notably  in  the  sixth  and  thirteenth 
centuries.  Perhaps  the  most  intolerant  imperial  edict  ever 
issued  against  the  Christian  religion  was  that  promulgated 
by  Emperor  Youngching,  in  1724,  and  yet  three  years  after, 
in  the  treaty  concluded  with  Russia,  he  expressly  engaged 
that  "  the  Russians  shall  be  permitted  to  exercise  their  re- 
ligion with  all  its  rites  and  to  recite  their  prayers."  ^  In- 
deed from  1724  to  the  middle  of  the  nineteenth  century, 
though  imperial  decrees  were  frequently  renewed  prohibit- 

freedoni  of  worship  and  the  prosecution  of  missionary  work  granted 
in  these  provisions,  were  not  Umitcd  to  the  Christian  reHgion.  Ac- 
cordingly, he  urged : 

"  Our  Buddhist  missionaries  coming  to  China  to  promulgate  the 
teachings  of  Buddha  should  enjoy  the  same  protection  as  Christian 
missionaries.  Hereafter  if  our  Buddhist  priests,  the  Chinese  subjects 
who  shall  have  taken  up  their  faith,  and  their  temples  should  be  dis- 
turbed or  injured,  the  Chinese  Government  should  recognize  its  obli- 
gation severely  to  suppress  the  disorder.  .  .  ." 

The  Waiwu  Pu,  however,  stood  firm  in  its  position ;  and  the  policy 
which  has  since  been  carried  out  would  seem  to  indicate  that  its  view 
has  prevailed.  Thus  in  1908  the  Prefect  of  Hainghwa  Fu,  Fukien, 
declined  the  request  of  the  Japanese  consul  to  protect  the  Japanese 
missionary  temple  in  Putien  Hien ;  and  in  the  same  year,  in  response 
to  a  request  for  instructions  from  the  Viceroy  at  Canton  as  to  cer- 
tain Japanese  Buddhists  found  in  Wemeichow  Fu  and  Chaochow  Fu, 
the  Waiwu  Pu  stated  that  they  could  be  protected  only  as  traveling 
aliens.  Subsequently,  a  Japanese  Buddhist  temple  in  Chenghai  Hien 
was  closed  by  order  of  the  local  authorities;  another  erected  in  the 
suburbs  of  the  city  met  with  the  same  fate;  and  a  third  established  in 
Haikow,  Hainan,  was  sealed  up  by  order  of  the  Japanese  consul  at 
Canton,  issued  in  compliance  with  a  request  of  the  local  authorities. — 
For  the  correspondence  between  the  Waiwu  Pu  and  the  Japanese  le- 
gation on  the  subject,  see  40  Nerv  Coll.  (Japan),  24;  for  details  of  the 
instances  cited,  see  Di{>l.  Rev.  (1908),  no.  2,  p.  13. 

1  Treaty  of  Kiakhto,  October  24,  1727,  article  v. 


413]  THE  CHRISTIAN  MISSIONARY  291 

ing  the  teaching  of  the  Gospel,  and  ordering  the  expulsion 
of  Catholic  missionaries,  a  great  many  of  them  remained  in 
the  interior  of  the  country  under  sufferance  of  the  local 
authorities,  and  the  number  of  Chinese  converts,  about 
300,000,  continued  to  worship  according  to  their  new  faith. 
It  was  also  during  this  so-called  period  of  persecution  of 
Christianity — at  the  beginning  of  the  nineteenth  century — 
that  the  Protestant  missionaries  made  their  first  appearance 
in  China  and  established  there  a  permanent  footing  for 
their  evangelical  enterprise. 

In  the  treaties  concluded  with  the  United  States  and 
France  in  1844,  China  may  be  said  to  have  accorded  western 
missionaries  for  the  first  time,  formally  though  impliedly, 
the  privilege  of  preaching  their  religion  within  her  terri- 
tory, since  she  agreed  therein  that  American  citizens  and 
Frenchmen  should  be  permitted  to  erect  churches,  schools 
and  hospitals  in  the  five  open  ports. ^  The  imperial  edict 
of  February  20,  1846,"  which  revoked  the  previous  in- 
junctions against  Christianity  and  permitted  the  teaching 
of  its  doctrines  in  the  ports, ^  seems  to  lend  support  to  the 

'  Article  xvi  of  the  American  treaty  and  article  xxii  of  the  French 
treaty. 

*  It  is  said  that  this  edict  and  others  of  like  nature  were  issued  by 
the  Emperor  in  compliance  with  a  request  of  France  to  that  effect — 
Count  de  Courcy,  Charge  in  China,  to  Count  Waleuski,  French  min- 
ister of  foreign  affairs,  July  30,  1856,  13  Rei'ue  d'  Hist.  Dipl.  (1899), 
497.  Article  xiii  of  the  French  treaty,  June  27,  1858,  provides  that 
"  all  that  which  has  been  previously  written,  proclaimed,  or  published 
in  China,  by  order  of  the  Government,  against  the  Christian  religion, 
is  completely  abrogated  and  remains  invalid  in  all  the  provinces  of  the 
Empire." 

'  This  and  other  edicts  issued  by  the  Emperor  Taokuang  did  not 
permit  the  preaching  of  the  Gospel  in  the  interior.  Accordingly,  when 
M.  Chapdelaine,  a  French  missionary,  was  put  to  death  by  a  Magis- 
trate in  Kwangsi  in  1856,  and  Count  de  Courcy,  the  French  charge 
d*  affaires,  on  July  25,  1856,  complained  of  this  offense  to  the  imperial 
commissioner  at  Canton  on  the  ground,  among  others,  that  "  the  free 


292  THE  STATUS  OF  ALIENS  IN  CHINA  [414 

statement.  Full  recognition  of  the  liberty  to  preach  and 
proselyte  was  not  granted  to  Christian  missionaries  until 
1858  when  a  simultaneous  revision  of  their  treaties  with 
China  afforded  four  powers  a  convenient  opportunity  for 
demanding  it  of  her. 

The  Russian  treaty  of  June  1-13,  the  first  of  those  con- 
cluded in  that  year,  in  article  VIII,  after  stipulating  for 
the  protection  of  Chinese  Christians,  provides  that 

The  Chinese  Government,  considering  missionaries  as  good 
men,  seeking  for  no  material  advantage,  will  permit  them  to 
propagate  Christianity  among  its  subjects,  and  will  not  prevent 
them  from  moving  about  in  the  interior  of  the  Empire.  A 
certain  number  of  missionaries  leaving  open  towns  or  ports 
shall  be  provided  with  passports  signed  by  the  Russian  Au- 
thorities.^ 

Under  article  XXIX  of  the  American  treaty  of  June  18, 
which  is  literally  reproduced  in  the  treaty  of  October  8, 
1903,  persons  who  peaceably  profess,  practice  and  teach 
the  principles  of  Christianity  "  shall  in  no  case  be  inter- 
fered with  or  molested."  The  eighth  article  of  the  British 
treaty  of  June  26  entitles  persons  doing  the  similar  acts 
in  like  manner  to  freedom  from  interference,  not  in  all 
cases,  as  is  provided  in  the  American  provision,  but  when 

exercise  of  this  religion  (of  the  Lord  of  Heaven)  is  formally  au- 
thorized by  the  edicts  of  the  Emperor  Taokuang,"  the  commissioner 
rejoined  in  his  reply  of  August  20,  1856,  that  "the  imperial  edicts  pre- 
scribed that  the  propagation  of  the  Christian  religion  shall  be  author- 
ized only  in  the  five  ports  open  to  commerce,  and  that  it  shall  be 
forijiddcn  to  penetrate  into  the  interior  of  the  Empire  to  preach  that 
religion — this  is,  moreover,  clearly  stipulated  in  the  treaty  itself." — 
13  Revue  d'Histoire  Diplomatique  (189),  481,  488-9,  491-2. 

1  This  is  translated  from  the  French  translation  said  to  be  made  from 
the  Russian  text  and  printed  in  Treaties  beliveen  China  and  Foreign 
States.  The  Chine.';e  text  given  in  parallel  columns  therein  does  not 
altogether  agree  with  the  French  version ;  for  instance,  the  attributes 
predicated  of  missionaries  arc  not  stated  at  all  in  the  Chinese  text. 


415]  THE  CHRISTIAN  MISSIONARY  293 

"not  offending  against  the  Laws."  The  French  treaty 
signed  on  June  27,  contains  in  article  XIII  the  fullest  pro- 
vision ^  relative  to  the  Christian  missionary.     It  reads : 

The  Christian  religion  having  for  its  essential  object  to  make 
men  virtuous,  the  members  of  all  the  Qiristian  communions 
shall  enjoy  complete  security  for  their  persons,  their  property 
and  the  free  exercise  of  their  religious  rites,  and  an  efficacious 
protection  shall  be  given  to  the  missionaries  who  peaceably  go 
into  the  interior,  furnished  with  regular  passports  provided  for 
in  the  eighth  article. 

It  is  thus  seen  that  the  presence  of  the  western  Christian 
missionary,  as  such,  in  the  interior  of  China  as  well  as  in  the 
open  ports  and  the  prosecution  of  evangelical  work  there 
are  authorized  by  treaty  and  missionaries  are  entitled  to  the 
protection  of  the  Chinese  authorities. 

§  2.  Control  and  Protection  of  Missionaries 
However,   troubles,   whether  of   their  own   making  or 

'  The  sixth  article  in  the  Chinese  text  of  the  additional  convention, 
October  25,  i860,  is  even  more  comprehensive  as  to  the  privileges  of 
Christians  and  French  missionaries,  but  it  is  to  be  added  that  the 
authoritative  text  of  the  convention  is  the  French,  in  which  the  cor- 
responding article  provides  for  nothing  beyond  the  restoration  of 
confiscated  property  to  the  proper  Christians.  The  translation  of  the 
Chinese  text  of  the  article  reads: 

"  It  shall  be  promulgated  throughout  the  length  and  breadth  of  the 
land,  in  the  terms  of  the  Imperial  Edict  of  the  20th  of  February, 
1846,  that  it  is  permitted  to  all  people  in  all  parts  of  China  to  propa- 
gate and  practice  the  '  teachings  of  the  Lord  of  Heaven,'  to  meet 
together  for  the  preaching  of  the  doctrine,  to  build  churches  and  to 
worship;  further  all  such  as  indiscriminately  arrest  (Christians) 
shall  be  duly  punished ;  and  such  churches,  schools,  cemeteries,  lands, 
and  buildings,  as  were  owned  on  former  occasions  by  persecuted 
Christians  shall  be  paid  for,  and  the  money  handed  to  the  French 
Representative  in  Peking,  for  transmission  to  the  Christians  in  the 
localities  concerned.  It  is,  in  addition,  permitted  to  French  mission- 
aries to  rent  and  purchase  land  in  all  the  Provinces,  and  to  erect 
buildings  thereon  at  pleasure." — Hertslet's  China  Treaties. 


294  T^^  STATUS  OF  ALIENS  IN  CHINA  [416 

fomented  by  ignorant,  intolerant,  or  wicked  people,  have 
frequently  befallen  Christian  missionaries  in  the  interior; 
popular  riots,  springing  from  one  cause  or  another,  have 
repeatedly  occurred  in  inland  districts  in  which  their  per- 
sons and  property  have  been  the  worst  or  the  only  victims — 
sometimes  threatening  the  friendly  relations  between  China 
and  the  Western  states,  and  more  often  giving  rise  to  com- 
plicated international  questions.  With  a  view  to  the  avoid- 
ance of  such  difficulties  in  the  future  the  Chinese  Govern- 
ment has  more  than  once  expressed  its  desire  to  have  the 
Christian  Powers  agree  to  place  their  missionaries  in  the  in- 
terior within  the  control  of  the  local  authorities.  Thus, 
following  the  settlement  of  the  Yangchow  riot  in  1868, 
Wan-tsiang,  senior  minister  of  the  Tsungli  Yamen,  sent 
to  Sir  Rutherford  Alcock,  British  Minister  at  Peking,  a 
note  dated  June  26,  1869,  in  which  he  observed  that  the 
principal  cause  of  missionary  trouble  in  the  interior  lay  in 
the  fact  that  the  western  missionaries,  taking  advantage  of 
their  immunities  from  local  jurisdiction,  sought  indiscrim- 
inately to  protect  Chinese  Christians,  many  of  whom  were 
making  their  religion  a  pretext  for  extorting  money  from 
honest  people;  that  the  reason  why  Confucianism  and 
Buddhism,  also  an  alien  creed,  prospered  in  China  without 
encountering  opposition  and  causing  disturbances,  was  that 
their  followers  and  preachers  were  fully  subject  to  the  con- 
trol of  the  authorities,  and  he  urged  that  if  the  Christian 
missionaries  were  similarly  controlled  "  the  result  will  be 
that  Christians  and  non-Christians  will  be  placed  on  a  just 
level  vis-a-vis  each  other,  and  trouble  will  not  arise  from 
unexpected  success  ".     It  is  not  known  what  Sir  Ruther- 

^  I'or.  Rel.,  1871,  p.  1 10.  A  memorandum  from  Tsungli  Yamen  to 
Sir  R.  Alcock,  July  18,  1869,  Pari.  Papers,  China,  no.  9  (1870),  12,  is 
a  note  nf  substantially  the  same  tenor;  probably  it  is  a  translation  of 
the  identical  note  with  the  date  differently  translated. 


417]  THE  CHRISTIAN  MISSIONARY  295 

ford  said  in  his  reply,  which  was  made  verbally,  to  these 
observations,  but  it  seems  more  than  probable  that  he  did 
not  concur  in  them. 

The  outbreak  of  the  Tientsin  massacre  in  1870  revived 
the  anxiety  of  the  Chinese  Government  on  the  missionary 
question,  and  in  February  of  the  following  year  the 
Tsungli  Yamen  accordingly  sent  to  the  foreign  representa- 
tives at  Peking  a  circular  note  enclosing  eight  rules  by 
which  it  proposed  to  regulate  the  conduct  of  the  mission- 
ary and  the  relation  between  converts  and  non-converts. 
In  the  third  rule  it  was  stated : 

Missionaries  residing  in  China  ought  to  conform  to  the  laws 
and  usages  of  the  empire.  They  ought  not  to  be  permitted  to  set 
up  an  independent  style  and  authority,  nor  should  they  resist 
the  laws  of  the  land,  and  oppose  the  orders  of  its  magistrates ; 
they  should  not  assume  power,  nor  encroach  on  the  rights  of 
others,  injuring  their  reputations  and  causing  scandal  in  the 
communities.  They  should  not  misuse  or  oppress  the  people, 
commit  acts  which  lead  men  to  suspect  their  designs,  and  pro- 
voke the  indignant  hatred  of  all  classes;  nor  lastly,  should 
they  malign  the  holy  doctrines  of  the  Chinese  sages,  and  thus 
arouse  public  resentment.  Every  missionary  ought  to  come 
under  the  authority  of  the  local  magistrates,  therefore,  in  all 
these  respects.^ 

With  reference  to  this  rule  as  well  as  another  following 
it  Mr.  Low  in  his  note  of  March  20,  1871,-  remarked  that 
it  appeared  to  him  "  entirely  unnecessary,"  adding  that 
missionaries  had  no  right  under  the  treaties  to  do  the  things 
complained  of,  and  that  any  additional  regulations  to  pre- 
vent such  acts  were  "  superfluous  ".     In  the  instructions 

*  Two  translations  of  the  Chinese  note  are  printed  in  For.  Rel.,  1871 ; 
one  by  the  American  legation  on  p.  99,  and  the  other  by  the  British 
legation  on  p.  150. 

*  For.  Rel.,  1871,  p.  107. 


296  THE  STATUS  OF  ALIENS  IN  CHINA  [418 

sent  to  Mr.  Low,  October  19,  1871,  Acting  Secretary  of 
State  Davis  states  that  the  idea  expressed  by  the  Yamen 
that  it  might  become  necessary  so  far  as  missionaries  were 
concerned,  to  curtail  some  of  the  rights  of  American  citi- 
zens granted  by  treaty,  "  cannot  be  entertained  for  one 
moment  by  the  United  States  ".^  The  British  Government 
was  more  emphatic  in  its  refusal  to  accept  the  Chinese  pro- 
positions. In  the  instructions  sent  by  the  foreign  office  in 
August,  1871,^  to  the  British  representative  at  Peking  it 
was  stated : 

Her  Majesty's  Government  cannot  allow  the  claim  that  the 
missionaries  residing  in  China  must  conform  to  the  laws  and 
customs  of  China  to  pass  unchallenged.  It  is  the  duty  of  a 
missionary,  as  of  every  other  British  subject,  to  avoid  giving 
offense,  as  far  as  possible,  to  the  Chinese  authorities  and  people, 
but  he  does  not  forfeit  the  rights  to  which  he  is  entitled  under 
the  treaty  as  a  British  subject  because  of  his  missionary  char- 
acter. 

The  instructions  added,  however,  that  in  withholding  its 
assent  to  the  proposed  rules  the  British  Government  was 
not  "  actuated  by  any  other  motive  than  the  wish  to  avoid 
embarrassing  a  question,  already  of  sufficient  difficulty,  by 
cumbrous  and  impracticable  regulations " ;  that  as  to 
British  missionaries,  if  they  behaved  improperly,  they 
should  "  be  handed  over  to  the  nearest  consul  for  punish- 
ment, like  other  British  subjects,  as  provided  in  the  treaty;" 
that  if  the  consuls  failed  to  afford  redress  in  any  instance 
the  local  authorities  could  appeal  through  the  Imperial  Gov- 
ernment to  the  British  minister  in  the  ordinary  course  of 
international  usage;  that  both  the  minister  and  the  consuls 
were  given  extensive  powers  for  maintaining  the  peace, 
order,  and  good  government  of  British  subjects  in  China, 

'  For.  Rel.,  1871,  p.  153.  '  For.  Rei,  1871,  p.  156. 


419]  THE  CHRISTIAN  MISSIONARY  297 

and  if  these  powers  were  inadequate  the  British  Govern- 
ment "  would  readily  increase  them  " ;  but  that  until  the 
inadequacy  was  proved  it  "  must  decline  to  supplement  the 
existing  treaties  by  regulations  which,  although  only  in- 
tended to  deal  with  a  particular  class  of  British  subjects, 
would  undoubtedly  subject  the  whole  British  community  in 
China  to  constant  interference  in  their  intercourse  with  the 
native  population  of  a  most  vexatious  description." 

While  the  protection  of  Protestant  missions  and  mission- 
aries in  China  has  always  been  left  to  their  respective  Gov- 
ernments, France,  until  very  recently,  persistently  claimed 
to  be  the  protector  of  Catholic  missions  in  China.  The 
French  protectorate  over  Catholic  missions  in  China  com- 
menced with  the  despatch  of  five  Jesuit  missionaries  to  the 
country  by  Louis  XIV  in  1685.  Prior  to  this  year  Por- 
tugal, by  virtue  of  a  papal  bull  granted  by  Pope  Nicholas 
V,  January  8,  1454,  which  was  renewed,  with  few  interrup- 
tions, by  the  succeeding  popes,  had  alone  exercised  the  right 
of  protection  over  Catholic  missions  in  Asia;  but  after 
France  undertook  to  assume  the  role  of  protector,  Portugal 
was  gradually  compelled,  by  the  waning  of  her  influence 
and  power  in  the  Far  East,  to  relinquish  her  religious  pres- 
tige and  position  in  favor  of  France,  although  as  late  as  the 
beginning  of  the  nineteenth  century,  she  was  still  reluctant 
to  give  up  the  right  to  nominate  bishops  for  Nanking  and 
Peking  as  suffragans  to  the  archbishop  of  Goa.  After 
entering  into  formal  treaty  relations  with  China  in  1844, 
France  became  more  zealous  of  her  position  as  protector  of 
Catholic  missions  in  the  Chinese  Empire  and  sedulously 
labored  in  their  behalf,  in  order  that  the  influence  which 
flowed  from  her  position  might  not  be  lost  to  her.  Early  in 
1846,  for  instance,  her  first  minister  to  China  made  a  rep- 
resentation in  behalf  of  Catholic  missionaries  and  Catholic 
converts,  in  pursuance  of  which  Emperor  Tao-kuang  issued 


298  THE  STATUS  OF  ALIENS  IN  CHINA  [420 

the  noted  Edict  of  February  20,  1846,  removing  all  pre- 
vious restrictions  upon  these  foreign  ecclesiastics  and  per- 
mitting Chinese  subjects  freely  to  embrace  the  Christian 
religion. 

Throughout  the  nineteenth  century  France  was  on  good 
terms  with  the  Pope  and  was  therefore  alone  entrusted  by 
the  latter  with  the  protection  of  Catholic  missionary  inter- 
ests in  the  Far  East.  This  privileged  position  of  France 
was  not  only  favored  by  the  Catholic  ecclesiastics  who 
carried  on  their  evangelical  work  in  China  but  was  undis- 
puted by  the  Catholic  states  of  Europe,  though  some  of 
them  had  occasionally  attempted  to  withdraw  their  own 
subjects  from  French  protection  on  grounds  of  public 
policy.  Portugal,  who  had  been  the  trusted  guardian  of 
Catholicism  in  Asia,  made  no  serious  effort  to  revive  her 
lost  title.  In  her  unratified  treaty  of  August  13,  1862,  with 
China,  nothing  was  said  of  Portuguese  missionaries;  and 
when  the  mission  of  Flainan  was  placed  by  the  Pope  in 
1876  under  the  jurisdiction  of  the  bishop  of  Macao,  the 
latter  applied  to  the  French  consul  at  Canton  for  a  pass- 
port for  M.  A.  C.  Garcez,  a  Portuguese  missionary  who 
had  been  appointed  to  administer  the  affairs  of  the  mission.^ 
The  treaty  of  Peking,  concluded  between  China  and  Por- 
tugal, December  i,  1887,  which  remains  in  force,  contains 
merely  a  toleration  clause  '  which  is  found  in  most  treaties 
with  other  nations. 

Austrian  missionaries  were  also  under  the  protection  of 
France.  Although  one  of  them  endeavored  in  1880  to 
obtain  through  the  British  consul  at  Canton  a  passport  with 
accompanying  documents,  such  as  those  delivered  by  the 
French  Legation,  namely,  the  proclamation  of  February, 
1862.  and  the  decree  of  April  4,  1862,  both  of  which 
were  considered  as  safeguards  to   foreign   Catholic  evan- 

'  H.  Cordier.  Relations  de  la  Chine,  etc.,  p.  637.  »  Article  lii. 


42 1  ]  THE  CHRISTIAN  MISSIONARY  299 

gelists  in  China,  the  Viceroy  of  the  two  Kwang  Provinces 
rejected  the  application,  and,  on  further  request,  granted 
only  a  TraveHng  Passport.  In  1882  the  same  Austrian 
missionary  applied  for  and  received  a  French  Passport.^ 

In  1868,  M.  de  Quevedo,  then  Spanish  minister  in  China, 
desiring  to  place  Spanish  missionaries  within  the  protection 
of  his  legation,  issued  a  circular  to  the  consuls  within  his 
jurisdiction  declaring  that  thereafter  Spain  would  herself 
undertake  to  protect  Spanish  ecclesiastics  in  China  and  re- 
quiring the  latter  to  surrender  the  French  passports  in 
their  possession  for  those  issued  by  the  Spanish  legation. 
This  was  opposed  by  the  Spanish  Dominicans  in  the  Chinese 
Empire,  and  the  French  legation,  after  the  lapse  of  a  few 
years,  resumed  the  issuance  of  passports  to  Spanish  emis- 
saries.^ 

During  the  Chinese-French  war  of  1884-5,  the  protec- 
tion of  the  ■  interests  of  France  in  China  was  entrusted  to 
the  Russian  legation  at  Peking.  But  the  Italian  minister. 
M.  de  Luca,  saw  in  the  war  an  opportunity  permanently  to 
withdraw  his  nationals  who  were  engaged  in  the  propaga- 
tion of  the  Catholic  faith  from  the  shelter  of  the  French 
Catholic  protectorate.  In  compliance  with  a  request  of 
some  Italian  missionaries,  he  personally  went  to  Hankow 
and  delivered  to  each  Italian  ecclesiastic  a  nationality  cer- 
tificate in  order  that  he  might  not  be  mistaken  by  the 
Chinese  for  a  Frenchman.^     Although  M.  de  Luca,  in  his 

'  H.  Cordier,  Relations  de  la  Chine,  etc.,  ii,  p.  638.        '  Ibid.,  p.  039. 

'  This  was  possible  not  only  because  there  is  a  close  resemblance  in 
the  physical  appearances  of  the  two  peoples,  but  also  on  account  of 
the  fact  that  in  the  Chinese  version  of  the  passport  issued  by  the 
French  legation,  the  bearer,  whatever  his  nationality,  was  indiscrimi- 
nately and  invariably  described  as  a  Frenchman  although  this  point 
was  left  open  in  the  French  version,  in  order  to  be  filled  in  as  each 
case  demanded.  British  passports  all  contain  the  phrase  "  a  British 
subject"  after  the  name  of  the  bearer,  just  as  the  United  States  pass- 
ports contain  the  phrase  "  a  citizen  of  the  United  States  "  in  the  cor- 
responding place. 


300  THE  STATUS  OF  ALIENS  IN  CHINA  [422 

note  of  November  15,  1884,  to  the  Tsungli  Yamen,  calling 
upon  the  latter  to  instruct  the  Viceroy  of  the  two  Hu  Pro- 
vinces to  affix  his  seal  to  the  Italian  nationality  certificates 
with  a  view  to  the  assurance  of  protection  to  their  holders, 
did  not  raise  the  question  of  the  French  protectorate  over 
Catholic  missions  in  China/  the  ministry  of  foreign  affairs 
at  Rome  did  not  fail  to  make  political  capital  out  of  the 
action  of  the  Italian  minister  at  Hankow.  M.  Mancini  de- 
clared to  the  French  Ambassador,  M.  Decrais,  that  he  ap- 
proved M.  de  Luca's  conduct  and  that  the  Vatican  was 
grateful  for  the  interest  which  the  Royal  ministry  had 
shown  under  the  circumstances  in  Italian  ecclesiastics. 
This,  however,  was  indirectly  denied  by  the  representatives 
of  the  Vatican,  who  declared  February  5,  1885,  that  in- 
structions were  about  to  be  sent  to  the  Italian  missionaries, 
inviting  them  to  resort  as  exclusively  as  possible  to  the 
good  offices  of  the  French  bishop  at  Peking.^  The  Italian 
legation  at  Peking  has  since  intervened  more  than  once  in 
behalf  of  its  nationals  engaged  in  missionary  work  in 
China,  notably  in  the  cases  settled  in  Shansi  Province  in 
1901. 

Great  Britain,  who,  though  a  Protestant  state,  counts 
millions  of  Catholics  among  her  subjects  and  has  a  large 
number  of  representatives  in  the  Catholic  missions  in  China, 
was  particularly  cautious  to  avoid  any  recognition  of  the 
right,  which  France  claimed,  to  protect  all  Catholic  mission- 
aries in  the  Chinese  Empire  so  as  to  enable  her  to  extend 
it  over  those  of  British  nationality.  In  the  fourth  article 
of  the  arrangement  of  March  15,  1899,*  an  official  inter- 
course between  Chinese  local  authorities  and  Roman  Catho- 
lic   missionaries,    unofficially    agreed    upon    between    the 

*  H.  Cordier,  Relations  de  la  Chitie,  etc.,  ii,  p.  642.       '  Ibid.,  p.  644. 
'  Hertslet's  China  Treaties,  ii,  p.  1154 


423]  ^^-S  CHRISTIAN  MISSIONARY  301 

Tsungli  Yamen  and  the  French  bishop  of  Peking,  it  was 
provided  that  "  in  grave  cases  concerned  with  Roman 
CathoHc  Missions,  Bishops  and  Priests  must  request  the 
Minister  of  the  nation  specially  intrusted  by  the  Pope  with 
the  protection  of  missionaries,  or  the  consul  of  the  nation, 
to  arrange  the  affairs  with  the  Tsungli  Yamen  or  the 
local  officials  ". 

With  reference  to  this  provision,  Lord  Salisbury  in- 
structed Mr.  Box-Ironside  in  Peking,  June  20,  1899,  "  to 
inform  the  Chinese  Government  .  .  .  that  where  Bishops 
and  Priests  of  British  nationality  are  concerned,  Her  Ma- 
jesty's Government  cannot  allow  their  affairs  to  be  sub- 
ject to  the  intervention  of  the  officials  of  any  Government 
other  than  the  British  Government,  unless  with  the  consent 
of  her  Majesty's  Diplomatic  Representative  in  special 
cases."  ^  The  contents  of  this  instruction  were  communi- 
cated to  the  Yamen,  August  i.  1899.- 

To  China,  the  French  protectorate  over  Catholic  missions 
within  her  territory  had  proved  generally  disagreeable  for 
the  simple  reason  that  France  exercised  this  protection,  as 
one  of  her  own  writers  has  observed,  much  less  as  a  hom- 
age paid  to  religion  than  as  one  of  the  leading  factors  of 
French  policy  in  the  Far  East.^  The  protectorate  observes 
the  same  writer,  was  for  a  long  time  "  pierre  angulaire 
de  notre  politique  dans  I'Extreme  Orient  ".*  England  de- 
rived her  strength  in  China  from  commerce,  Russia  from 
the  extent  of  her  territory  and  her  propinquity  to  China, 
and  France  from  religion.  It  was  therefore  natural  that 
in  1885  China  attempted,  though  unsuccessfully,  to  wreck 
the  foundation  upon  which  France  had  been  planting  and 
building  her  political  influence  within  her  empire,  by  seek- 

^  Pari.  Papers,  China,  no.  i    (1900),  149.  '  Ibid.,  p.  324. 

•  H.  Cordier,  Relations  de  la  Chine,  etc.,  ii,  p.  637. 

*  Ibid.,  p.  625. 


302  THE  STATUS  OF  ALIENS  IN  CHINA  [424 

ing  to  establish  direct  relations  with  the  Vatican.  The  oc- 
casion which  inspired  the  Chinese  Government  to  begin 
a  campaign  against  the  French  religious  protectorate  was 
the  delivery  of  a  papal  message  to  the  Chinese  Emperor 
early  in  1885,  ^vhen  hostilities  were  still  raging  between 
France  and  China,  expressing  the  Pope's  appreciation  of 
the  Emperor's  benevolent  edict  issued  upon  the  outbreak 
of  the  war,  which  promised  protection  to  Christian  mis- 
sionaries of  all  nationalities,  French  as  well  as  other;  and 
asking  His  Majesty  to  continue  this  gracious  policy  toward 
the  foreign  ecclesiastics.  Pere  Ginlanelli,  who  was  entrusted 
by  the  court  of  the  Vatican  to  deliver  the  message,  when  he 
passed  through  Peking  on  his  way  to  a  missionary  post  in 
Sheuse,  was,  through  Sir  Robert  Hart,  as  his  intermediary, 
given  an  imperial  audience  on  April  8,  1885,  at  the  close 
of  which  the  papal  epistle  was  handed  to  the  Emperor. 
Two  days  later  the  Tsungli  Yamen  returned  an  official 
reply  conveying  the  Emperor's  appreciation  of  the  Pope's 
letter  and  his  good  wishes  for  the  head  of  the  Church.  All 
these  proceedings  took  place  at  Peking  w'ithout  the  knowl- 
edge of  the  French  consul  at  Tientsien,  France's  sole  rep- 
resentative in  North  China  during  the  war,  for  he  was  not 
informed  by  Bishop  Tagliabue  in  the  capital  until  they  be- 
came accomplished  facts. 

Undoubtedly,  the  Yamen  considered  this  a  good  oppor- 
tunity to  open  relations  with  the  Holy  See  if  not  for  the 
purpose  of  terminating  French  protection  of  missions  in 
China,  at  least  with  the  hope  of  avoiding  in  future  the 
complication  and  difficulties  which  France  appeared  to  be 
always  ready  to  throw  in  the  way  of  settling  Catholic 
missionary  cases,  in  order  to  make  them  serve  her  political 
ends.  Li  Hung-Chang,  to  whom  the  Yamen  intrusted  the 
task  of  carrying  out  the  more  or  less  secret  project,  at 
once  appointed  George  Dunn,  a  British  merchant,  to  pro- 


425 J  ^^£  CHRISTIAN  MISSIONARY  303 

ceed  to  Rome.  Everything  seemed  to  point  to  a  suc- 
cessful issue  of  the  campaign.  The  Pope  appeared  well  dis- 
posed toward  the  proposal ;  he  appointed  Mgr.  Agliardi  as 
legate  to  China;  and  the  latter  accepted  the  appointment. 
England,  Germany,  Italy  and  even  Belgium  encouraged 
the  court  of  Peking  to  persist  in  its  course.  Abroad,  Car- 
dinal Manning  and  the  Archbishop  of  Westminster  made 
common  cause  with  Marquis  Tseng,  who  was  actively  en- 
gaged in  bringing  about  the  subversion  of  the  French  pro- 
tectorate. But  all  this,  however,  proved  of  no  avail  in  the 
face  of  the  subtle  influence  of  diplomacy  which  the  French 
Ambassador  at  the  Vatican  was  able  to  exert  over  respon- 
sible authorities  of  the  church.  The  latter  were  led  to  see 
that  no  single  power  was  prepared  to  take  the  place  of 
France  in  the  protection  of  the  Catholic  interests  in  China. 
China  herself  could  hardly  be  confided  with  the  protection, 
the  agents  of  the  Church  not  being  strong  enough  to  check 
the  possible  reprisals  of  the  Empire  against  Catholic  mis- 
sions. All  of  this  meant  that  the  Vatican  would  be  ob- 
liged to  ask  for  the  joint  protection  of  the  European 
powers  or  to  invoke  the  good  offices  of  Italy,  neither  of 
which  was  desirable.  The  conclusion,  as  stated  by  the 
Archbishop  of  Tyre  to  Lefebvre  de  Behaine,  the  French 
ambassador,  was :  "  le  statu  quo  est  de  beaucoup  pre- 
ferable." ' 

The  desire  of  the  Chinese  Government  to  establish  direct 
relations  with  the  Holy  See  was  apparently  also  engendered 
by  the  opposition  which  France  had  set  to  its  attempt  to 
appropriate  the  site  of  the  Pe  Tang  (Cathedral  of  the 
North)  for  the  purpose  of  extending  the  palace  garden  in 
the  capitol.     This  affair  also  serves  to  elucidate  the  Chinese 

^  Lefebvre  de  Behaine  to  French  Foreign  Ministry,  September  9.  1885, 
H.  Cordier,  Relations  de  la  Chine,  etc.,  ii,  p.  647.  For  a  documentary 
account  of  the  whole  affair,  see  ibid.,  pp.  590-604,  645-648. 


304  THE  STATUS  OF  ALIENS  IN  CHINA  [426 

view  of  the  character  of  the  French  protectorate  over 
rehgious  missions.  The  property  on  which  the  cathedral 
stood  was  originally  granted  to  the  Jesuits  by  Emperor 
Kanghi,  July  4,  1693,  ^s  a  gift;  it  was  subsequently  built 
upon  by  the  missionaries  with  subvention  granted  by  I.ouis 
XIV.  The  cathedral  was  destroyed  in  1827  when  persecution 
against  Christianity  was  wide-spread,  but  was  restored 
to  the  Lazarists,  who  had  succeeded  to  the  Jesuits,  through 
the  efforts  of  the  French  Minister,  in  pursuance  of  the 
sixth  article  of  the  convention  of  Peking,  October  25,  i860. 
Under  these  circumstances  it  was  contended  that  the  cathe- 
dral was  "  most  incontestably  the  property  of  France,"  that 
"  neither  the  Pope  nor  the  Lazarists  had  any  right  over  the 
Pe-Tang."  ^  When  the  Tsungli  Yamen  proposed  in  1874 
for  the  first  time  to  recover  the  property  by  purchase,  the 
French  Government "  as  well  as  the  missionaries  absolutely 
refused  to  consider  the  proposal.  For  the  time  being  this 
uncompromising  attitude  caused  much  feeling  but  the  death 
of  Emperor  Tungchi  put  an  end  to  the  negotiations.  The 
retirement  of  the  Empress  Dowager  from  the  regency  in 
1885  made  the  resumption  of  extension  work  on  the  palace 
park  necessary,  and  negotiations  were  therefore  made  to 
France  for  the  recovery  of  the  Pe-Tang  site.  But  before 
the  French  consul  at  Tientsin,  M.  Ristelhueber,  received 
his  authorization  from  his  Government  to  negotiate  a  set- 
tlement, Li-Hung-chang,  evidently  encouraged  by  the  pros- 
pect of  having  a  papal  representative  accredited  to  the  court 
of  Peking,  effected  a  secret  agreement,  through  his  agent, 
Mr.  Detring,  with  M.  Favier,  procurator  of  the  Lazarist 
mission  in  Peking.     By  the  terms  of  this  agreement,  which 

*  H.  Cordier,  Relations  de  la  Chive,  etc.,  ii,  pp.  611-612. 

*  At  the  laying  of  the  corner-stone  of  the  new  cathedral,  May  i,  1865, 
M.  Berthemy,  the  French  minister,  is  said  to  have  declared :  "  C'est  la 
France  qui  la  pose,  malhcur  a  qui  y  touchcra." — Cordier,  ii,  p.  605. 


427]  THE  CHRISTIAN  MISSIONARY  305 

was  to  take  effect  upon  ratification  by  the  Emperor  and  the 
Pope,  the  mission  was  to  relinquish  its  rights  over  the  Pe- 
Tang  and,  in  return,  to  receive  a  new  site  in  Sichankow 
and  350,000  taels  for  purposes  of  construction.  When 
Consul  Ristelhueber  was  informed  of  the  conclusion  of  this 
agreement,  there  was  an  outburst  of  feeling  on  the  part  of 
the  French  authorities  both  toward  Mr.  Favier  and  Li 
Hung-chang,  but  the  latter  stood  firm  in  his  position  for  a 
time.  Li  contended,  in  effect,  that  the  property  had  been 
given  by  Emperor  Kanghi  to  the  Jesuits  as  an  act  of  grace, 
that  the  interposition  of  the  French  legation  on  the  occa- 
sion of  its  restoration  to  the  missionaries  was  accepted  only 
in  execution  of  the  Peking  convention  of  i860,  and  that 
the  Emperor  had  the  perfect  right  to  retake  it  when  he 
needed  it  for  other  purposes,  especially  when  due  compen- 
sation was  promised  the  occupants.  Further,  an  arrange- 
ment was  about  to  be  made  with  the  Pope  for  the  settle- 
ment of  all  missionary  questions  with  him  directly,  of 
course,  including  the  ratification  of  the  Favier-Detring  con- 
vention; in  this  arrangement  there  would  be  no  invasion  of 
the  traditional  protection  exercised  by  France  over  Catholic 
missions  in  China,  but  if  the  French  Government  opposed 
the  conclusion  of  such  an  arrangement,  China  would  be 
determined  to  confine  herself  to  the  execution,  pure  and 
simple,  of  article  XIII  of  the  treaty  of  1858,  which,  ac- 
cording to  the  opinion  of  the  eminent  legists  consulted  on 
the  subject,  did  not  confer  on  France  any  right  of  inter- 
national protection  over  religious  missions  in  China. 
When,  however,  the  Pope,  as  has  already  been  stated, 
yielded  to  the  influence  of  French  diplomacy  and  resolved 
with  fresh  faith  to  continue  to  confide  to  France  the  pro- 
tection of  the  interests  of  the  Church  in  the  Far  East,  Li 
Hung-chang  was  deprived  of  his  most  formidable  weapon 
for  coercing  France  to  accede  to  the  wishes  of  the  Chinese 


3o6  THE  STATUS  OF  ALIENS  IN  CHINA  [428 

Throne  on  the  subject  of  the  Pe-Tang;  and  forthwith  he 
changed  his  attitude.  August  18,  1886,  he,  through  Consul 
Ristelhueber,  telegraphed  to  the  President  of  France,  stat- 
ing that  he  had  just  been  informed  of  the  fact  that  France 
claimed  certain  rights  over  the  Pe-Tang,  by  virtue  of  which 
the  intervention  and  assent  of  the  French  Government  were 
necessary  for  the  retrocession  of  the  establishment,  and  that 
he  now  wished  to  request  the  President  kindly  to  ratify  the 
Favier-Detring  agreement.  Three  months  later,  Novem- 
ber 18,  Li  wrote  to  M.  Constans,  the  French  minister,  who 
had  arrived  in  China  meanwhile,  declaring  that  the  trans- 
fer of  the  Pe-Tang  was  simply  demanded  as  an  act  of 
kindness  from  a  friendly  Government ;  that  as  to  the  open- 
ing of  direct  relations  with  the  Pope,  China  never  attached 
much  importance  to  the  coming  of  a  papal  delegate,  and 
that  "  questions  concerning  missions  will  naturally  con- 
tinue to  be  treated,  as  previously,  by  France."  ^  From  this 
time  on,  the  negotiations  for  the  appropriation  of  the 
Pe-Tang  followed  a  normal  course.  Li  sent  a  formal  re- 
quest to  M.  Constans,  November  22,  to  which  the  latter 
acceded  on  November  25.  An  imperial  edict  of  De- 
cember 3,  1885,  ratifying  the  arrangement,  expressed  the 
Throne's  appreciation  of  the  successful  termination  of  the 
affair  by  conferring  an  official  title  on  Bishop  Tagliabue, 
M.  Favier,  and  Commissioner  Detring,  and  by  decorating 
George  Dunn  and  Consul  Ristelhueber.  Favier  and  Dunn 
were  each  presented  with  a  gift  of  2,000  taels,  besides. 
The  Yamen  sent  to  M.  Constans,  December  15,  1886,'  for 
transmission  to  Bishop  Tagliabue,  a  little  deed  to  the  new 
site  in  Sichikow  made  out  in  the  bishop's  name.  An  agree- 
ment signed  December  16,  by  the  French  minister  and  the 
bishop,  declares  that  it  remains  understood  between  the 
parties  that  "  the  rights  which  the  French  Government  pos- 

'  H.  Cordier,  Relations  dc  la  Chive,  etc.,  ii,  p.  615. 


429]  ^^^  CHRISTIAN  MISSIONARY  307 

sesses  over  the  existing  Pe-Tang  are  reserved  and  will  be 
carried  over  the  site  in  Lichihow  and  over  the  buildings 
which  may  be  erected  thereon."  ^  The  final  instruments 
for  the  transfer  of  the  Pe-Tang  was  signed  December  14, 
1887,  by  the  representative  of  the  Yamen  on  one  part,  and 
by  those  of  the  French  legation  and  the  Catholic  mission 
on  the  other.^ 

It  is  clear  that  the  Chinese  Government  did  not  consider 
the  protection  of  Catholic  missions  by  France  as  a  right 
recognized  by  any  treaty  which  it  had  concluded  with  her. 
Cordier,  on  the  other  hand,  has  observed,  agreeably  with 
the  attitude  and  policy  of  the  French  Government,  that 
Article  XXII  of  the  treaty  of  Whampoa,  August  25,  1845, 
the  first  international  compact  between  China  and  France, 
was  of  "  une  importance  exceptionelle,"  because  it  was 
"  une  nouvelle  confirmation  du  protectorat  exerce  sur  les 
missions  par  la  France."  *  This  inference,  however,  could 
not  be  sustained  without  straining  the  letter  of  the  pro- 
vision, inasmuch  as  the  latter  spoke  of  only  "les  Frangais" 
as  being  entitled  to  establish  churches,  hospitals,  asylums, 
schools  and  cemeteries,  and  in  the  final  clause  the  punish- 
ment of  the  guilty  was  stipulated  only  in  case  "  des  eglises 
ou  des  cimetieres  Frangais,"  not  churches  or  cemeteries  of 
any  nationality,  were  destroyed. 

The  thirteenth  article  of  the  treaty  of  June  27,  1858, 
providing  for  the  toleration  of  the  preaching  and  embracing 
of  "  the  Christian  religion,"  as  admitted  by  Cordier,  "  ne 
stipule  pas  toutefois  notre  protectorat  sur  les  missions."*  As 
to  the  sixth  article  of  the  Peking  treaty  of  i860,  the  same 

1  Cordier,  Relations  de  la  Cliine,  ii,  p.  622. 

2  For  a  documentary  account  of  the  whole  affair,   see   ibid.,   ii,   pp. 
604-624. 

•''  Ibid.,  i,  p.  17  ;  ii,  p.  626. 
*  Ibid.,  ii,  p.  626. 


3o8  THE  STATUS  OF  ALIENS  IN  CHINA  [430 

writer  maintains,  however,  that  the  clause  providing  for  the 
restoration  of  the  confiscated  property  of  Catholic  missions 
"  par  I'entremise  du  ministre  de  France  "  "  marque  bien 
la  reconnaissance  d'un  droit."  ^  This  is,  however,  merely 
one  interpretation  of  the  effect  of  the  clause.  On  the  other 
hand,  a  different  construction  may  be  fairly  upheld.  The 
confiscations  referred  to  had  taken  place  at  a  period  long 
before  China's  treaty  relations  commenced  with  France 
or  any  other  Western  nation  except  Russia.  The  res- 
toration stipulated  for  was  expressly  declared  to  be  based, 
not  on  any  treaty,  not  even  on  that  of  1844,  but  on  a  do- 
mestic law,  the  edict  of  February  20,  1846.  Under  these 
circumstances  the  restoration  of  the  confiscated  property 
might  appropriately  be  considered  as  an  act  of  grace  on 
the  part  of  China,  and  the  interposition  of  the  French  lega- 
tion was  accepted  merely  as  the  safest  and  most  convenient 
way  of  reaching  the  owners  of  the  property.  In  short,  the 
inference  from  the  clause  under  consideration  of  implied 
assent  on  the  part  of  China  to  the  French  protectorate  over 
Catholic  missions  in  China  seems  to  be  far  from  established 
beyond  doubt  or  question. 

But  whether  there  was  or  was  not  any  treaty  sanction, 
express  or  implied,  for  the  exercise  by  France  of  the  right 
of  protection  over  Catholic  missions  in  the  Chinese  Em- 
pire, it  is  a  fact  that  the  right  was  repeatedly  exercised  and 
that  such  exercise  does  not  appear  to  have  been  seriously 
questioned  by  the  Chinese  Government.  On  the  contrary, 
the  latter  seems  to  have  tolerated  it  in  practice.  In  1865, 
for  instance,  the  Tsungli  Yamen  accepted  the  representation 
of  M.  Berthemy,  the  French  minister,  and  granted  to 
Catholic  missions,  as  such,  the  privilege  of  acquiring  real 
property  in  the  interior.  Again,  often  during  the  last 
half   a   century   the   French   legation   presented   claims   to 

'  Relations  de  la  Chine,  etc.,  ii,  p.  626. 


43 1  ]  THE  CHRISTIAN  MISSIONARY  309 

the  Chinese  Government,  on  various  occasions,  in  behalf 
of  Catholic  missions  regardless  of  their  nationality,  and 
they  were  paid  without  raising  the  question  of  their  pro- 
tection by  France.  Passports  were  also  issued  by  the  lega- 
tion to  Catholic  missionaries  of  all  nationalities  residing  in 
China,  and  they  were  honored  by  the  Chinese  authorities. 

French  protection  of  the  Catholic  interests  in  China  has 
now  ceased,  however.  In  January  of  1906,  the  French 
minister  at  Peking  notified  the  Waiwu  Pu  that  his  Govern- 
ment had  informed  him  of  the  law  which  the  French  Na- 
tional Assembly  had  enacted,  ordering  the  severance  of  offi- 
cial relations  between  the  state  and  the  church,  and  had 
instructed  him  to  declare  that  after  the  date  of  the  note  the 
French  legation  would  take  care  only  of  cases  affecting 
French  missionaries  and  that  those  affecting  missionaries 
of  other  nations  should  be  referred  to  their  ministers.^  Ac- 
cordingly when  a  German  Catholic  missionary,  subse- 
quently in  the  same  year,  applied  to  the  French  legation 
for  a  passport,  the  applicant  was  referred  to  the  German 
minister. 

§  3.  Missionaries,  as  a  rule,  treated  equally  with  other 
Foreigners 

In  their  own  practice  the  foreign  powers  make  no  dif- 
ference in  the  treatment  of  missionaries  and  those  who 
pursue  a  different  vocation.  "  The  missionary  is  simply  a 
citizen  (or  a  subject)  and  the  sacred  character  of  his  object 
and  purpose  does  not  enter  into  the  question  of  the  deter- 
mination of  his  rights."  - 

While  refusing  to  allow  any  of  the  treaty  rights  of  their 
nationals  to  be  diminished  in  respect  of  their  missionaries, 

'  Dit)l.  Rev.  (1906),  no.  2,  p.  6. 

'  Mr.  Denby,  minister  to  China,  to  Mr.  Bayard.  Secretary  of  State, 
Oct.  9,  1886,  For.  Rel,  1886,  p.  96. 


3IO  THE  STATUS  OF  ALIENS  IN  CHINA  [432 

the  treaty  powers  generally  seem  to  be  equally  scrupulous, 
with  one  notable  exception,  in  abstaining  from  asking  on 
behalf  of  such  missionaries  special  privileges  not  enjoyable 
by  others  engaged  in  a  different  calling.  The  United  States 
has  been  particularly  vigilant  in  preserving  the  equal  treat- 
ment of  its  citizens  by  China.  In  his  instructions  to  Mr. 
Low.  Minister  at  Peking.  October  19,  1871/  Acting  Sec- 
retary of  State  Davis  states  : 

The  President  will  see  with  deep  regret  any  attempt  to  place  a 
foreign  ecclesiastic,  as  such,  on  a  different  footing  from  other 
foreigners  residing  in  China.  It  is  a  fundamental  principle  in 
the  United  States  that  all  persons,  of  every  sect,  faith,  or  race, 
are  equal  before  the  law.  They  make  no  distinction  in  favor 
of  any  ecclesiastical  organization.  Prelates,  priests,  and  min- 
isters can  claim  equal  protection  here,  and  enjoy  equal  rank 
in  the  eye  of  the  civil  law.  The  United  States  asks  no  more 
in  China  than  they  confer  at  home.  Should  the  peace  of  the 
empire  be  disturbed  by  efforts  from  any  quarter  to  induce  or 
compel  the  government  to  confer  unusual  civil  rights  on  for- 
eign ecclesiasticals,  you  will  make  it  plain  that  the  United 
States  have  no  sympathy  with  such  a  movement,  and  regard 
it  as  outside  of  the  treaty  rights  which  have  been  conferred 
upon  the  western  nations.  Should  these  demands,  however,  be 
complied  with,  this  Government  will  then  consider  whether, 
under  the  thirtieth  article  of  the  treaty  of  1858,  a  similar  right 
will  not  at  once  inure  to  the  benefit  of  all  the  public  officers, 
merchants,  and  (other)  citizens  of  the  United  States. 

The  view  of  the  United  States  in  a  word,  is  this :  "An 
American  missionary,  in  the  eyes  of  the  law,  is  a  citizen, 
no  more.- 

In  a  circular  addressed  by  the  British  minister.  Sir  E. 

'  For.  Rel..  1871,  p.  153. 

2  Mr.   Young  to   China  Branch   of   Evangelical   Alliance,   March   28, 
1885.    For.  Rel.,  1885,  p.  167. 


433]  THE  CHRISTIAN  MISSIONARY  311 

Satow,  to  British  consuls  in  China,  August  31,  1903/  it  is 
pointed  out 

That  missionaries  are  not  accredited  agents  of  the  British 
Government,  for  the  enforcement  of  the  treaty  (of  Tientsin, 
1858),  and  Article  VIIL  was  not  intended  to  confer  upon  mis- 
sionaries any  right  of  intervention  on  behalf  of  native  Chris- 
tians. 

If  a  missionary  has  to  complain  on  behalf  of  himself  that 
his  teaching  is  interfered  with,  or  that  a  Chinese  preacher  or 
convert  has  been  interfered  with  or  persecuted,  his  proper 
course  is  to  lay  the  facts  before  the  Consul  of  the  district  in 
which  he  resides,  who,  after  due  examination,  will  make  such 
representations  to  the  Chinese  authorities  as  the  case  may 
require. 

A  similar  rule  appears  to  be  in  force  as  respects  German 
missionaries.  In  1906  when  one  of  them  asked  the  Magis- 
trate of  Nankai  Hien  by  direct  correspondence  to  allot  to 
his  church  certain  property  adjoining  it,  and  the  magistrate 
sent  guards  to  survey  the  land  and  was  about  to  grant  the 
application,  the  German  consul  at  Canton,  on  learning  of 
the  affair,  immediately  requested  the  Viceroy  to  stay  the 
proceedings  of  the  magistrate  on  the  ground  that  any  matter 
between  missionaries  of  his  country  and  the  local  authori- 
ties should  be  communicated  to  the  Chinese  officials  through 
the  consul  and  not  directly  by  the  interested  persons.  On 
the  other  hand,  France  seems  to  have  always  recognized  a 
special  position  for  her  missionaries  in  China.  They  are, 
for  instance,  allowed  to  correspond  directly  with  the  local 
authorities  on  missionary  matters  and  settle  their  own  claims 
in  less  grave  cases. 

The  policy  of  the  Chinese  Government  has  been  to  treat 

*  Hertslet's  China  Treaties,  ii,  p.  1181. 

*  Dipl.  Rev.  (1906),  no.  14,  p.  4. 


312  THE  STATUS  OF  ALIENS  IN  CHINA  [434 

foreign  missionaries  in  the  same  manner  as  other  citizens 
or  subjects  of  the  treaty-Powers.  It  recognizes  no  official 
character  in  them  as  missionaries,  and  enjoins  on  the  local 
authorities  not  to  accept  intercourse  with  them  on  such 
footing.  Pretensions  were  not  infrequently  advanced,  and 
presumptuous  acts  done,  by  Roman  Catholic  missionaries, 
but  they  were  usually  discountenanced  by  the  Chinese  au- 
thorities. Thus  the  circular  note  of  1871  on  the  mission- 
ary question  stated  among  other  instances,  that  in  1867 
a  French  bishop  in  Zechuen  addressed  the  authorities  of 
that  province  by  despatches  which  he  stamped  with  an  offi- 
cial seal  cast  for  that  purpose,  that  another  bishop  in 
Kweichow  presumed  to  send  an  official  communication  in 
terms  of  equality  to  the  foreign  office  by  the  government 
post,  and  that  another  Romist  missionary  in  Shantung  had 
the  boldness  to  style  himself  a  suin-fu  or  governor;  it  char- 
acterized such  acts  as  "  unjustifiable  and  impertinent  pro- 
ceedings," and,  as  a  means  to  deter  their  repetition,  pro- 
posed in  the  seventh  rule  ^  the  following  : 

The  missionaries  ought  to  observe  Chinese  customs,  and  to 
deviate  from  them  in  no  respect ;  for  instance,  they  ought  not 
to  make  use  of  seals,  the  use  of  which  is  reserved  for  func- 
tionaries alone.  It  is  not  allowed  them  to  send  despatches  to 
a  Yamen,  whatever  may  be  their  importance.  If,  however,  for 
an  urgent  matter  it  should  be  absolutely  necessary  to  write, 
they  may  do  it;  but  taking  good  care  not  to  speak  of  matters 
beyond  the  subject,  and  use,  like  people  belonging  to  the  class 
of  literates,  the  ning-tieh  (petition).  When  the  mission- 
aries visit  a  great  mandarin,  they  must  observe  the  same  cere- 
monies as  those  exacted  from  the  literates ;  if  they  visit  a 
mandarin  of  inferior  rank,  they  must  also  conform  to  the 
customary  ceremonies.  They  must  not  unceremoniously  go 
into  the  Yamens  and  bring  disorder  and  confusion  into  the 
affair. 

'  For.  Rel,  1871,  p.  164. 


435]  ^^-S  CHRISTIAN  MISSIONARY  313 

The  foreign  governments  addressed  admitted  the  prin- 
ciples thus  expressed,  and  declined  to  accept  the  rule  itself 
only  on  the  ground  that  sufficient  remedies  were  already 
provided  in  the  then  existing  treaties  and  regulations.  In 
1875  when  a  French  priest  addressed  a  "communication" 
on  a  certain  subject  to  the  magistrate  of  Icheng  Hien  in 
Kiangsu,  it  was  reported  to  the  Viceroy,  who  issued  an 
order  in  which  he  made  a  statement  to  the  following  effect  •} 
Priests  are  not  officials.  Whenever  they  have  matters  to 
complain  of  the  local  officials  they  should  use  the  form  of  a 
petition  or  that  of  a  letter.  If  the  missionary's  complaint 
is  in  the  form  of  a  "  communication  you  shall  notify  the 
said  missionary  that  hereafter  he  may  not  employ  that  form 
of  correspondence  again  in  order  that  the  treaties  may  be 
conformed  to."  Again,  in  the  circular  note,"  addressed  by 
the  Yamen  to  the  foreign  Powers  in  1878  one  of  the  things 
which,  it  was  stated,  "  China  cannot  tolerate  or  submit  to  " 
was  that  "  among  the  missionaries  are  some  who  exalting 
the  importance  of  their  office,  arrogate  to  themselves  an 
official  status,  and  interfere  so  far  as  to  transact  business 
that  ought  properly  to  be  dealt  with  by  the  Chinese  local 
authorities." 

An  exception  ^  to  the  policy  maintained  by  the  Chinese 

1  6  Analy.  Comp.,  pt.  iii,  19.  ^  For.  Rel,  1880,  p.  177. 

'  Honors  and  courtesies  have  only  occasionally  been  extended  to  mis- 
sionaries; these  acts  are  simply  a  matter  of  grace,  and  are  not  done 
frequently  enough  to  make  them  exceptions. 

In  1887,  Bishop  Tagliabue  and  M.  Favier,  both  of  the  Cathedral  of 
Pe-Tang  in  Peking,  were  granted  by  the  Emperor  the  red  button  and 
the  char  blue  button  respectively. — 24  Mem.  Dipl.  (1887),  133. 

Again,  in  1901,  the  Bureau  of  Foreign  Affairs  in  Shansi  was  in- 
structed by  the  Chinese  Plenipotentiaries  to  have  the  provincial  au- 
thorities and  gentry  welcome  certain  Protestant  missionaries,  who 
were  about  to  go  there  to  negotiate  a  settlement  of  the  missionary 
cases  in  Shansi,  and  also  to  provide  for  them  a  residence  and  ban- 
quets, "  in  order  to  cause  cordial  feeling  toward  them." — 61  New  Coll. 
(Gen.),  27. 


314  THE  STATUS  OF  ALIENS  IN  CHINA  [436 

Government  of  equal  treatment  of  missionaries  and  other 
citizens  or  subjects  of  the  treaty  Powers  was  the  arrange- 
ment '  made  by  the  Tsungli  Yamen  with  Fan-Kuo-hang 
(from  Chinese),  the  Roman  CathoHc  bishop  stationed  in 
Peking,  and  sanctioned  by  an  Imperial  decree  of  March 
15,  1899.  By  the  terms  of  this  arrangement  Roman 
Catholic  bishops  were  to  rank  with  Governors-General  and 
Governors^  provicars  and  head  priests  with  treasurers, 
judges,  and  Taotais,  and  other  priests  with  Prefects  and 
Magistrates ;  Chinese  officials  were  to  return  calls  in  ac- 
cordance with  the  rank  of  the  priest;  bishops  were  required 
to  furnish  the  provincial  authorities  with  a  list  giving  the 
names  of  "  the  priests  deputed  to  transact  international 
business  with  the  Chinese  officials;"  the  local  officials,  when 
applied  to  in  regard  to  missionary  cases  "  must  at  once  dis- 
cuss and  arrange  the  affair  in  an  equitable  and  friendly 
manner;  and  so  forth."  The  arrangement,  however, 
worked  unsatisfactorily,  the  privileges  it  accorded  the  Cath- 
olic missionaries  being  frequently  abused,-  and  on  March 

'  For  the  Chinese  text  of  the  arrangement  which  consisted  of  five 
articles,  see  61  New  Collection  (General),  24;  for  an  English  transla- 
tion of  it,  see  Pari  Papers,  China,  no.  i  (1900),  p.  142. 

'  As  an  instance  of  the  abuses,  the  case  in  Fukien,  reported  in  a 
despatch  which  the  Waiwu  Pu  received  from  the  Viceroy  of  Min- 
Cho  Provinces,  May  4,  1906,  may  be  noted.  "  In  the  city  of  Whein- 
gnan,"  stated  the  Viceroy,  "  there  has  always  been  a  Catholic  church 
house  inhabited  by  the  French  priest  Shih  Sing-hi,  who  ordinarily 
goes  about  in  a  small  sedan-chair  accompanied  by  a  single  attendant 
on  horseback.  The  people  look  upon  his  traveling  in  that  manner  as 
an  ordinary  event.  Suddenly,  on  March  11,  1906,  there  came  from 
Anioy  a  Frenchman  by  the  name  of  Ku,  who  pretends  to  have  been 
appointed  by  his  Government  as  Superintendent  of  the  Roman  Cath- 
olic missionaries  in  Fukien,  Formosa,  Tonking,  and  other  places.  He 
rode  in  a  big  sedan-chair  carried  by  eight  men,  and  his  two  compan- 
ions. Priests  Ngan  and  Shih,  each  rode  in  a  chair  carried  by  four 
men.  These  chairs  were  followed  by  more  than  ten  small  chairs  and 
horses.  In  front  of  them  there  were  marshalls,  gong-carriers,  and  a 
company  of  200  guards  armed  with  rifles.     When  the  procession  was 


437]  THE  CHRISTIAN  MISSIONARY  315 

12,  1908,  the  Throne,  on  memorial  of  the  Waiwu  Pu,  re- 
pealed the  law  of  1899,  which  sanctioned  the  arrangement 
by  declaring  it  to  be  "  no  longer  desirable  or  necessary  ". 
and  ordered  the  provincial  officials  to  accord  Roman  Catho- 
lic missionaries,  in  their  intercourse  with  them,  such  rights 
and  privileges  as  should  be  in  conformity  with  treaty 
provisions/ 

§  4.  Residence  and  Property-Holding  in  the  Interior 

In  one  important  respect  missionaries  in  China  are  placed 
on  a  different  footing  from  other  classes  of  foreigners. 
Apart  from  the  privilege  of  sojourning  and  leasing  prop- 
erty for  temporary  use  anywhere  in  China, — a  privilege 
which  is  an  incident  of  the  treaty  right  to  travel  in  the 
Empire  on  passports,  and  which  is,  therefore,  equally  en- 
joyable to  all  classes  of  foreigners, — Christian  evangelists, 
as  members  of  organized  missions,  are  granted  the  treaty 
right  to  rent  and  to  lease  in  perpetuity,  as  the  property  of 
such  missions,  buildings,  or  lands  in  all  parts  of  the  Empire, 
for  missionary  purposes,  and.  by  implication,  the  addi- 
tional right  of  permanent  residence  in  the  interior,  while  as 

entering  the  city  gates  the  gong  carriers  beat  their  gongs  and  the 
guards  ordered  a  blank  discharge  to  inspire  awe,  and  the  neighbor- 
ing churches  fired  sakites  from  their  guns  and  rifles.  At  this  point 
the  minds  of  men  were  alarmed.  It  was  only  after  the  magistrate  de- 
tailed soldiers  to  the  scene  that  the  people  began  to  disperse. 

"  The  next  day  these  foreigners  left  the  city  in  the  same  style. 
When  they  arrived  at  Shentiennu  the  country  inhabitants  were  panic- 
stricken  and  fled,  almost  causing  serious  troubles." 

It  may  be  added  that  the  Waiwu  Pu  promptly  called  the  attention 
of  the  French  minister  at  Peking  to  the  case,  and  requested  him  "  to 
consider  the  question  and  to  instruct  the  French  consul  at  Amoy  to 
investigate  into  the  case  and  strictly  to  forbid  its  recurrence,  in  order 
that  the  treaties  may  be  observed  and  peace  be  maintained  between  the 
Christians  and  non-Christians." — For  the  report  and  correspondence 
about  this  case,  see  10  New  Collection  (France),  34. 

'61  New  Collection  (General),  25. 


3i6  THE  STATUS  OF  ALIENS  IN  CHINA  [438 

individuals,  they  are  accorded,  by  the  authorities  of  certain 
localities,  similar  liberties  in  respect  to  property  and  resi- 
dence; whereas  foreigners  pursuing  other  vocations  in 
China  are  allowed  to  enjoy  neither.  To  appreciate  the  ex- 
tent of  the  right  and  the  character  of  the  liberty,  it  is  only 
necessary  to  study  the  origin  and  history  of  the  differential 
treatment  on  this  point  maintained  in  China  in  favor  of  the 
missionaries. 

The  last  clause  of  the  sixth  article  of  the  Chinese  text 
of  the  convention  concluded  between  China  and  France, 
October  25,  i860,  reads: 

It  is,  in  addition,  permitted  to  French  missionaries  to  rent 
and  purchase  land  in  all  the  Provinces,  and  to  erect  buildings 
thereon  at  pleasure. 

It  appears  that  for  nearly  a  decade  after  the  convention 
was  concluded  the  clause  was  understood  and  viewed  in  the 
same  light  as  the  remaining  provisions  of  the  compact, — 
without  betraying  the  least  suspicion  as  to  its  authenticity 
or  conclusiveness.  Early  in  1869,  however,  it  was  dis- 
covered that  the  clause  was  one  "  added  to  the  Chinese 
version  of  the  Convention  which  has  no  counterpart  in  the 
French  text ;  and  as  Article  III  of  the  French  treaty  of  1858 
stipulates  that  the  French  text  shall  in  all  cases  govern, — 
whatever  is  not  found  in  the  French  text  cannot  be  held 
binding    on    either    contracting    party. ^      Indeed    the    dis- 

'  Sir  R.  Alcock  to  Earl  of  Clarendon,  March  12.  1869,  Pari.  Papers, 
China,  no.  9  (1870),  2.  It  is  to  be  noted  that  Sir  Rutherford  does  not 
appear  to  have  been  aware  of  the  discrepancy  as  late  as  September  11, 
1868,  for  under  that  date  he  wrote  to  Lord  Hawley,  stating  that  "  it 
does  not  seem  that  any  new  clause  of  a  Treaty  is  required  to  give  to 
British  missionaries  the  right  they  seek  of  purchasing  land,  and  re- 
siding in  all  parts  of  the  country.  Article  vi  of  the  French  Treaty  is 
perfectly  clear  on  that  point,  and  what  is  acquired  as  a  right  for 
French  missionaries,  is  equally  acquired,  by  the  favored  nation  clause, 
for  the  British,  as  I  have  recently  had  occasion  to  remind  the  Foreign 
Board." — Pari.  Papers,  China,  no.  2  (i86g),  26. 


439]  '^^^^  CHRISTIAN  MISSIONARY  317 

crepancy  appears  to  be  a  pure  interpolation  in  the  Chinese 
text,  there  being  "  no  similar  words,  no  language,  which 
by  any  construction,  can  seem  to  have  been  made  the  basis 
of  the  actual  translation  from  French  to  Chinese/ 

What  the  understanding  of  the  French  Government  was, 
after  the  signing  of  the  convention  of  i860,  as  to  the 
rights  represented  in  the  interpolated  clause,  it  is  not 
known;  but  in  view  of  the  fact  that  the  sixth  article  of 
the  French  text  of  the  convention  clearly  stipulated  for 
the  complete  restoration  to  their  original  owners  of  the 
confiscated  Catholic  establishments  in  the  provinces,  it  is 
not  unlikely  that  it  understood  the  article,  by  implication, 
to  permit  Catholic  priests,  as  members  of  missionary  bodies, 
to  resume  the  privilege,  w^hich  they  had  enjoyed  before  the 
policy  of  persecution  was  enforced,  of  residing  and  pur- 
chasing property,  in  the  interior  of  the  Empire,  for  mis- 
sionary purposes.  At  any  rate,  it  appears  from  the  terms 
of  the  arrangement "  reached,  February  20,  1865,  between 
the  Tsungli  Yamen  and  M.  Berthemy,  the  French  j\Iin- 
ister,  that  the  privilege  of  holding  property  in  the  inland 
was  then  assumed  by  the  contracting  parties  to  have  been 
in  existence  in  favor  of  Catholic  missions.  The  arrange- 
ment provided  that  where  property  was  to  be  sold  to 
Catholic  missionaries  the  title  deed  was  to  state  the  name 
of  the  seller  or  person  executing  the  transfer,  and  was  to  set 
forth  that  the  property  was  to  be  held  in  common  by  the 
members  of  the  local  Catholic  church ;  special  mention  was 
not  to  be  made  of  any  missionary  or  convert,  so  as  to  leave 
no  doubt  that  the  ground  still  remained  Chinese  soil.  In 
its  instructions  to  the  Provinces,  in  1865,^  with  reference 

1  Mr.  Denby  to  Mr.  Bayard,  October  9,  1886,  For.  Rei,  1886,  p.  96. 
"^  Incorporated   in   the   Yamen's   instructions  to  the   provinces,    1895, 
71  New  Coll.  (Gen.),  27. 
'71  New  Collection   (General),  26. 


3i8  THE  STATUS  OF  ALIENS  IN  CHINA  [440 

to  the  arrangement,  the  Yamen  explained  the  reason  for 
these  restrictions  and  pointed  out  the  limitations  of  the 
arrangement  by  stating: 

The  practice  of  building  churches  in  the  interior  dates  back 
from  a  very  early  period.  jMissionaries,  however,  are,  after  all, 
subjects  of  foreign  nations;  therefore,  if  they  desire  to  pur- 
chase land  for  the  purpose  of  building  mission  chapels  thereon, 
the  title-deed  should  only  state  that  the  land  is  sold  to  become 
the  public  property  of  the  local  Catholic  church.  If  foreigners, 
in  violation  of  treaty,  attempt  to  purchase  property  in  the  in- 
terior for  private  ownership,  this  shall  continue  to  be  pro- 
hibited as  heretofore. 

In  the  same  year  the  Superintendent  of  the  Trade  of 
Northern  Ports,  in  ordering  the  local  authorities  within  his 
jurisdiction  to  observe  the  terms  of  the  arrangement,  put 
forward  his  construction  of  it  to  the  effect  that  no  Chinese 
subject  was  permitted  to  lease  or  otherwise  transfer  his 
property  to  be  used  for  missionary  purposes  without  first 
obtaining  an  authorization  from  the  local  magistrates, 
"  who  in  fact  have  generally  refused  to  give  it."  The 
French  legation  considered  this  construction  as  an  inter- 
polation and  repeatedly  protested  against  its  enforcement 
by  the  local  authorities,  especially  by  its  notes  of  February 
5,  1882,  and  August  31,  1888.  Finally,  on  December  3, 
1894,  the  Tsungli  Yamen,  in  compliance  with  a  renewed 
request  of  Mr.  Gerard,  the  French  minister,  issued  new 
instructions  to  the  Viceroys  and  Governors  of  the  Prov- 
inces to  the  effect  that  the  prospective  seller  of  property 
to  French  Catholic  missions  in  the  interior  should  no  longer 
be  required  to  inform  the  local  authorities  of  his  intention 
to  sell  or  to  ask  beforehand  their  authorization  of  the 
sale.^ 

*  M.  Gerard  to  M.  Hanotoux,  April  30,  1895,  128,  Arch.  Dipl.  (1898), 
305.  For  a  French  translation  of  the  Yamen's  instructions,  see  ibid.; 
for  the  Chinese  text,  see  71  New  Coll.  (Gen.),  27. 


441  ]  THE  CHRISTIAN  MISSIONARY  319 

Thus  it  is  clear  that  so  far  as  the  Roman  Catholic  mis- 
sionaries are  concerned,  they  have,  since  a  century  ago,  al- 
ways been  allowed  to  acquire,  in  conformity  with  the  speci- 
fied conditions,  land  situated  in  the  interior,  regardless  of 
the  question  whether  the  power  they  are  thus  permitted  to 
exercise  is  in  the  nature  of  a  right  or  only  a  privilege.  The 
Protestant  missionaries,  on  the  other  hand,  have  had  a 
great  deal  of  difficulty  in  knowing  what  rights  or  privileges 
if  any,  they  had  and  for  that  matter,  they  do  not  absolutely 
know  what  they  have,  with  reference  to  residence  and  prop- 
erty holding  in  the  interior  of  China.  Their  own  view,  as 
expressed  by  their  representative  in  1888,  v/hen  it  was 
feared  lest  the  United  States  Government  might  "  advocate 
the  side  of  no  right  under  the  treaty,"  is  that  to  do  so 
"  would  be  a  severe  blow,"  and  that  "  better  would  it  be 
if  silence  were  adopted,  in  case  a  decision  cannot  be 
rendered  on  the  other  side."  ' 

By  conciliatory  dispositions  and  prudent  conduct  a  large 
number  of  them  have  succeeded  in  establishing  a  permanent 
foothold  in  inland  places,  and  by  purchasing  and  holding 
land  in  the  name  of  their  Chinese  converts,  as  this  was  the 
only  safe  means  in  the  early  days,  they  have  acquired  a 
considerable  amount  of  inland  property.  But  opposition 
has  frequently  been  encountered  in  their  initial  attempt  to 
plant  a  missionary  chapel  in  an  uncultivated  field  while 
popular  riots  have  taken  place,  time  and  again,  in  places 
where  they  have  already  established  themselves,  threaten- 
ing dispossession  and  expulsion.  Under  such  circum- 
stances it  is  natural  that  they  have  evinced  a  desire  ap- 
proaching anxiety,  to  know  what  their  status  in  the  in- 
terior is. 

The  view  of  the  Chinese  Government  on  the  question 

*  Mr.  Reid  to  Mr.  Bayard,   Secretary  of   State,  May  24,   1888.     For. 
Rel,  1888,  p.  325. 


320  THE  STATUS  OF  ALIENS  IN  CHINA  [442 

has  been  an  easily  intelligible  one.  It  has  always  consid- 
ered the  establishment  of  a  permanent  residence,  and  the 
acquisition  of  real  property  in  the  interior  by  French  mis- 
sionaries as  members  of  a  local  church,  to  be  rights  pro- 
vided for  by  treaty ;  ^  and  has  deemed  it  only  fair  that  what 
has  been  enjoyed  by  French  missionaries  should  equally 
be  accorded,  with  like  conditions,  to  missionaries  of  other 
nationalities.  Thus  in  1887  the  Emperor  in  exchange  for 
the  grounds  of  the  Catholic  cathedral  gave  to  the  Catholic 
mission  a  large  and  valuable  tract  of  land  within  his  capital, 
close  to  the  Forbidden  City,  to  be  used  for  churches,  schools, 
convents,  hospitals  and  as  the  residence  of  the  numerous 
clergy,  and  in  addition,  gave  them  400,000  taels  for  the 
purpose  of  the  mission.  Again,  in  its  note  of  February 
19,  1897,"  in  reply  to  Mr.  Denby's  note  embodying  a  draft  * 
of  five  propositions  made  by  the  State  Department  of 
Washington  as  the  best  means  to  prevent  the  recurrence 
of  anti- foreign  riots,  the  Tsungli  Yamen  states : 

Your  Excellency  proposes  the  following  measures: 
First.  Recognition  by  the  issuance  of  a  formal  declaration 
in  an  imperial  decree  that  American  missionaries  have  the 
right  to  reside  in  the  interior  of  China.  It  may  be  observed 
that  this  right  is  provided  for  by  treaty.  Imperial  decrees  have 
already  been  issued  commanding  that  due  protection  should  be 
given  to  the  United  States  citizens  residing  in  Qiina.  .  .  . 

Second.     Your  excellency  states  that  the  declaration  in  such 
decree  should  be  that  American  missionaries  have  the  right 

*  This  may  mean  either  the  Berthemy  convention  of  1865  or  the  con- 
vention of  October  25,  i860;  the  latter  seems  to  be  more  likely  the 
case,  since  the  Chinese  Government  does  not  appear  to  have  been 
aware  of  the  discrepancy  between  the  sixth  article  of  the  Chinese 
version,  and  that  of  the  French  text,  of  the  convention  of  i860,  or  to 
have  ever  contested  the  authoritativeness  of  the  Chinese  version. 

*  For.  Rel,  1897,  p.  61.  »  For.  RcL.  1896,  p.  62. 


443]  ^^^  CHRISTIAN  MISSIONARY  321 

to  buy  land  in  the  interior  of  China;  that  they  shall  have  all 
privileges  of  the  Berthemy  Convention,  and  that  deeds  taken 
by  them  shall  be  in  the  name  of  the  missionary  society  or 
church  which  buys  the  land,  as  that  society  provides. 

The  princes  and  ministers  beg  to  state  that  while  the  treaties 
between  the  United  States  and  China  do  not  provide  for  this, 
still  the  American  missionaries  should  be  treated  in  this  matter 
the  same  as  the  French  missionaries. 

The  Yamen's  answer  to  the  first  proposition  "  is  a  valu- 
able admission,  as  treaties,  except  the  Berthemy  convention, 
are  silent  on  the  question  of  residence  in  the  interior."  ^ 
As  regards  individual  missionaries,  the  Chinese  Govern- 
ment has  not  opposed  or  contested  their  enjoying  the  right, 
accorded  missionary  societies,  of  residence  and  of  purchas- 
ing lands  or  houses  in  inland  places;  indeed,  it  has  left  the 
matter  entirely  to  the  dispositions  of  the  local  populace  and 
the  discretion  of  the  local  authorities.  In  no  case  \vhere 
individual  missionaries  have,  by  the  tolerance  of  the  people 
and  officials  as  well  as  by  their  own  tact,  established  them- 
selves in  an  inland  district  has  the  Government  at  Peking 
raised  an  objection;  and  where  they  have  been  denied  ad- 
mission, or  dislodged,  after  having  once  been  admitted,  it 
has  usually  defended  the  action  of  the  authorities  rather  on 
grounds  of  local  inconvenience  and  popular  animosity  than 
on  that  of  the  non-existence  of  the  right  at  the  outset. 

The  general  practice  of  the  local  authorities  indicates 
that  they  have  regarded  the  right  of  missionaries  to  reside 
permanently  in  the  interior,  and  there  to  hold  lands  or 
houses,  to  be  secured  by  treaty,  and  that  in  following  out 
their  view  they,  whether  for  want  of  a  clear  perception,  or 
in  pursuance  of  a  studied  policy,  have  not  as  a  rule  insisted 
upon  the  distinction  between  missionaries  as  members  of  an 

^  Mr.  Denby  to  Mr.  Olney,  February  25,  1897,  For.  Rel.,  1897,  p.  60. 


322  THE  STATUS  OF  ALIENS  IN  CHINA  [444 

organized  body,  and  missionaries  as  individuals.  It  is  true 
tliat  in  1868  the  Taotai  of  Chef 00  for  instance  refused  to 
set  his  seal  to  a  deed  of  gift,  sent  to  him  by  the  British 
consul,  purporting  to  transfer  to  a  British  missionary  title 
to  a  temple  situated  in  Chihia  Hien,  on  the  ground  that 
foreigners  had  no  right  to  hold  property  in  the  interior ;  "• 
and,  again,  in  1881  the  magistrate  of  Namhoe  objected, 
correctly  or  incorrectly,  to  the  purchase  by  an  American 
missionary  of  land  situated  just  outside  of  the  walls  of  the 
port  of  Canton,  for  two  stated  reasons :  first,  that  the  trea- 
ties between  the  United  States  and  China  did  not  allow  citi- 
zens of  the  United  States  to  buy  land  beyond  the  walls  of 
the  port  of  Canton,  and,  second,  that  even  if  this  was  not 
the  right  view  of  the  treaties,  still  the  missionary  in  ques- 
tion had  no  right  to  buy  in  his  own  name  for  the  mission 
society."  But  such  opinions  as  these  are  exceptional ;  by 
far  the  more  common  view  entertained  by  the  local  authori- 
ties has  been  in  favor  of  the  missionaries. 

Thus  take  a  few  examples.  In  1872  two  American  mis- 
sionaries, of  the  Southern  Presbyterian  Church  mission 
took  possession  of  a  piece  of  land  in  Hangchow,  140  miles 
from  Ningpo,  then  the  nearest  port,  purchased  "in  the  name 
of  a  friendly  Chinese."  The  property  stood  on  a  hill  fac- 
ing the  Yamen  of  the  Provincial  Treasurer,  and  buildings 
were  erected  on  it,  which  according  to  soothsayers,  seri- 
ously disturbed  the  Yamen's  free  shui  or  geomancy.  He, 
understanding  that  the  missionaries  had  obtained  the  prop- 
erty in  exercise  of  their  treaty-right,  desired  them  merely 
to  exchange  the  land  on  the  hill  for  another  piece  on  the 
plain.  The  proposal  was  accepted  through  the  American 
consul  on  condition  of  receiving  a  site  of  equal  size,  a  sum 

•  Pari.  Papers,  China,  no.  9  (1870),  i. 
»  For.  Re!..  1881.  p.  283. 


445]  THE  CHRISTIAN  MISSIONARY  323 

of  $11,000  for  the  expenses  likely  to  be  incurred  in  mak- 
ing the  exchange,  a  title-deed  made  out  in  the  name  of  the 
mission  and  under  the  seal  of  the  magistrate,  and  finally 
a  proclamation  to  be  issued  by  the  lieutenant  governor  stat- 
ing that  the  exchange  was  made  voluntarily  on  both  sides. 
These  conditions  were  accepted  by  the  Chinese,  and  in  his 
communication  conveying  to  the  consul  the  fact  of  the  ac- 
ceptance, the  Taotai  of  Ningpo — after  quoting  the  twelfth 
article  of  the  American  treaty  of  1858,  which  in  fact  au- 
thorizes residence  and  acquisition  of  property  only  at  the 
open  ports,  and  provides  nothing  for  inland  residence  or 
the  holding  of  inland  property — observed  that  "  according 
to  his  language,  the  treaty  does  not  prohibit  foreigners 
renting  lands  and  building  houses,"  and  referring  to  the 
arrangement  planned  for  making  the  exchange,  added  that 
"  this  seems  to  be  for  mutual  harmony,  and  in  accordance 
with  the  right  principles."  ^  Again,  in  1875  the  committee 
for  Foreign  Affairs  for  the  province  of  Fukien  issued  a 
special  proclamation,  which,  after  stating  the  principles  of 
the  Christian  religion  as  declared  in  the  treaties,  apparently 
to  give  a  reason  for  the  "  foreigners  of  every  nationality 
conducting  missionary  operations  in  the  interior  of  China," 
continues  as  follows : 

In  reference  to  foreigners  obtaining  land  of  the  Chinese  in 
the  interior,  under  a  perpetual  lease,  on  which  to  construct 
chapels,  the  lease  should  be  handed  over  by  the  foreigner  con- 
cerned to  his  consul,  and  by  him  transmitted  to  the  local  author- 
ity for  inspection,  and  in  order  to  receive  the  official  seal,  and 
then  returned  to  the  foreigner.  And  they  are  permitted  to  rent 
the  premises  of  the  people  for  use  as  chapels  in  all  the  cities, 
towns  and  villages  as  they  may  choose.     Let  it  be  understood 

1  Taotai  Koo  to  Consul  Lord,  Sept.  25,  1873,  For.  Rel,  1874,  p.  2391 
For  the  remaining  correspondence  on  the  case,  see  For.  Rel.,  1873,  pt. 
i,  pp.  118,  120,  122,  125,  127,  130,  13s:  For.  ReL,  1874,  pp.  235,  237,  244. 


324  T^^  STATUS  OF  ALIENS  IN  CHINA  [445 

that  their  renting  buildings  for  chapels  is,  in  all  respects,  the 
same  as  though  the  buildings  were  rented  to  merchants  for 
shops,  or  to  families  as  places  of  residence :  the  neighbors  on 
either  hand  must  not  invent  falsehoods,  or  raise  objections, 
but  must  heed  the  treaties. 

This  proclamation  is  issued  in  order  to  fully  inform  you 
officials,  seniors,  soldiers,  and  common  people  that  the  purchase 
of  premises,  opening  of  chapels,  and  prosecuting  of  missionary 
work  in  all  places  by  foreigners,  is  plainly  specified  in  the 
treaty.  If  in  any  place  a  fraudulent  sale  is  made,  let  full  com- 
plaint be  made  to  the  local  officials,  and  permit  no  local  dis- 
turbance to  the  making  of  trouble.^ 

Mr.  Aven^  then  minister  at  Peking,  expressed  the  belief 
that  "  could  such  proclamations  be  issued  in  all  the  pro- 
vinces .  .  .  the  number  of  missionary  difficulties  would 
soon  be  very  small."  -  Six  years  later  (1881),  in  another 
case,  wherein  American  missionaries  under  the  Presby- 
terian Board  of  Mission  went  to  Tsinau  Fu  on  traveling 
passports,  there  purchased,  as  usual,  in  the  name  of  a 
Chinese  Christian,  a  house  situated  by  the  side  of  the  local 
college  of  literates,  took  possession  of  the  property  for  six 
weeks  and  were  then  dispossessed  by  the  literates  for  want 
of  authentic  deeds,  the  local  officials  willingly  offered,  at 
the  suggestion  of  the  missionaries,  two  locations  from 
w^hich  the  latter  might  select  one  in  exchange  for  their 
original  house,  without  raising  the  question  as  to  their  right 
of  holding  any  property  in  the  city."^  In  the  same  year 
the  Southern  Methodist  Mission  of  the  United  States  had 
already  acquired  property  w'orth  some  $15,000  in  Soo- 
chow ;  and  upon  its  purchasing  a  new  site  in  Yuenho  Hien, 
and  at  the  request  of  the  missionaries,  the  magistrate  there- 
of issued  a  special  proclamation  on  December  31,  1881.  in- 

*  For.  Rel,  1875,  Pt-  i.  P-  404.  '  Ibid.,  p.  402. 

•  For.  Rel.,  1881,  pp.  287.  291. 


447]  THE  CHRISTIAN  MISSIONARY  325 

structing  the  constables  and  the  people  of  that  place  "  to 
bear  in  mind  that  the  renting  or  purchasing  of  land  by 
foreign  missionaries  for  the  building  of  houses  in  which 
to  preach  the  doctrines  of  Christianity,  is  in  accordance 
with  treaty  stipulations,"  and  warning  unprincipled  persons 
not  to  "  take  advantage  of  any  cause  to  create  dis- 
turbance in  that  vicinity  "  under  pain  of  arrest  and  punish- 
ment.^ The  American  charge  d'affaires,  referring  to  this 
proclamation,  said : 

This  document  is  interesting  and  valuable,  since  it  not  only 
shows  a  favorable  disposition  on  the  part  of  the  Chinese 
authorities  towards  our  people,  but  admits  a  right  which  has 
not  been  claimed  by  us  under  the  treaties,  i.  e.,  the  right  of 
missionaries  to  purchase  and  hold  for  the  use  of  their  work 
real  estate  at  interior  points  in  China. 

When  Chinese  local  authorities  generally  shall  accept  the 
liberal  position  taken  by  the  district  negotiate  at  Soochow,  we 
shall  be  relieved  of  many  delicate  and  complicated  questions 
which  now  vex  the  diplomatic  relations  of  China  and  the 
United  States.^ 

On  the  part  of  the  British  Government  much  caution 
has  been  exhibited  in  dealing  with  the  question  of  perma- 
nent residence  and  acquisition  of  property  by  British  mis- 
sionaries in  the  interior  of  China.  To  the  argument  ad- 
vanced by  the  British  missionary  body  in  1861,  in  support 
of  the  action  of  two  of  its  members  in  purchasing  a  prop- 
erty in  Poklo,  an  inland  district  in  Kwang-tung  in  the  face 
of  opposition  from  the  local  gentry,  that  the  right  to  make 
such  a  purchase  was  conceded  by  the  twelfth  article  of  the 
British  treaty  of  1858,  which  provided  that  "  British  sub- 
jects, whether  at  the  ports  or  at  other  places  "  might  buy 

1  For.  Rel,  1882,  p.  132. 

2  Mr.  Holcombe,  c?iarge  at  Peking,  to  Mr.  Frelinghuysen,  Sec.  of 
State,  Mar.  4,  1882,  For.  Rcl,  1882,  p.  132. 


326  THE  STATUS  OF  ALIENS  IN  CHINA  [448 

land  and  build  or  open  houses,  warehouses,  churches,  etc., 
the  representatives  of  the  British  Government  in  China  re- 
plied by  stating  that  the  interpretation  placed  by  them  on 
the  words  "  at  other  places  "  was  not  admitted;  and  when 
they  took  retreat  under  the  favored  nation  clause  and 
claimed  the  privileges  believed  to  have  been  secured  to  the 
French  missionaries  by  the  sixth  article  of  the  French  con- 
vention of  i860,  they  were  given  to  understand  that  Her 
Majesty's  Government  was  reluctant  to  insist  upon  the 
claim.  ^  In  1868  their  position  in  the  interior  remained  un- 
improved. When,  in  that  year,  a  British  evangelist  re- 
ceived, as  a  present  from  a  Chinese  family,  to  be  used  for 
missionary  purposes,  a  temple  situated  in  Chihia  Hien 
Shan-tung,  and  sent  the  deed  of  gift  to  his  consul  to  be 
stamped  by  the  local  authorities,  the  consul  notified  him, 
subsequently,  that  the  Taotai  of  Chefoo  refused  to  affix 
his  seal  to  the  deed  and  that  he  would  not  prosecute  the 
claim  any  further.  The  Committee  of  the  Baptist  Mis- 
sionary Society  thereupon  communicated  the  facts  of  the 
case  to  the  British  foreign  office  and  inquired  whether 
British  subjects  have  a  right  by  treaty  to  hire,  purchase,  or 
receive  as  a  gift,  land  or  buildings  in  China,  if  natives  were 
disposed  to  let,  sell,  or  give."  "  The  question  was  referred 
to  Sir  Rutherford  Alcock,  the  British  minister  at  Peking, 
and  on  May  19,  1869,  upon  his  advice,  the  Earl  of  Claren- 
don gave  him  the  following  instructions.^ 

I  have  to  acquaint  you  that  her  Majesty's  Government  agree 
with  you  that  it  is  not  incumbent  on  them  to  insist  in  favour 
of  British  missionaries  on  the  privileges  conceded  to  Roman 
Catholic  missionaries,  and  brave  the  consequences  of  doing  so. 

'  Par}.  Papers.  China,  no.  5  (1871),  116. 

»  Rev.  F.  Trestrail  to  Lord  Stanley.  Dec.  8,  1868,  Pari.  Papers,  China, 
no.  9  (1870),  I. 

^  Pari.  Papers,  China,  no.  9  (1870),  4. 


449]  T^^^  CHRISTIAN  MISSIONARY  327 

But  still  less  would  they  feei  disposed  to  do  so,  when,  as  ap- 
pears to  be  the  case,  the  privileges  claimed  for  the  Roman 
Catholic  missionaries  rest  on  no  sound  foundation,  but  on  an 
interpolation  of  words  in  the  Chinese  version  alone  of  the 
French  Treaty  with  China. 

You  will,  therefore,  not  allow  British  missionaries  to  sup- 
pose that,  in  virtue  of  that  interpolation,  Her  Majesty's  Gov- 
ermnent  can  support  their  pretensions  to  any  other  privilege 
of  residence  and  locomotion  in  China  than  British  subjects  in 
general  may  enjoy,  and  should  it  be  necessary,  you  will  warn 
them  that  if  they  seek  to  assert  greater  privileges  they  will  do 
so  at  their  own  risk  and  responsibility,  and  must  not  expect 
any  action  or  forcible  interference  on  the  part  of  Her  Maj- 
esty's Government  for  their  relief. 

Early  in  April,  1870,  the  National  Bible  Society  of  Scot- 
land renewed,  in  a  memorial  to  the  Earl,  the  claims  pre- 
viously advanced  by  other  missionaries  bodies,  but  received 
no  better  than  the  following  ■} 

Her  Majesty's  Government  is  not  prepared  to  insist  on  any 
such  extended  construction  of  the  term  "  place  "  in  the  XH 
Article,  as  is  suggested  by  the  Memorialists.  H  the  Article 
was  subject  to  be  construed  in  that  sense,  the  limitation  of 
trade  to  certain  specified  ports  would  have  been  superfluous. 

Her  Majesty's  Government,  whatever  may  be  the  claim  as- 
serted by  the  French  Government  in  behalf  of  French  mission- 
aries, are  not  prepared  to  claim  for  British  missionaries  any 
other  privileges  than  those  that  may  be  enjoyed  by  other 
British  subjects. 

In  his  circular  of  September  20,  1870,-  Mr.  Wade. 
British  minister  at  Peking,  instructs  the  British  consuls  in 
China  that  the  reply  decides  two  points : 

^  Mr.  Hammond  to  Hon.   A.   Kinnaird,  Apr.   14,   1870,  Pari.  Papers, 
China,  no.  i   (1871),  170. 
» Ibid. 


328  THE  STATUS  OF  ALIENS  IN  CHINA  [45a 

1st.  That,  under  Treaty,  the  British  missionary  body  had 
no  right  of  residence  in  China  distinct  from  the  right  of  any 
other  British  subject. 

2nd.  That,  the  right  of  British  subjects  to  residence  can 
be  exercised  only  at  the  Treaty  ports,  or  in  their  immediate 
vicinity.^ 

Mr.  Wade  further  states  that  as  the  consul  "  is  responsible 
for  the  control,  and  more  or  less  for  the  protection  of  his 
port  community,"  the  safest  rule  for  him  will  be  that 
.  .  .  "  he  is  not  at  liberty  to  sanction  permanent  residence 
at  points  so  distant,  or  so  isolated,  as  to  make  it  impos- 
sible to  satisfy  these  obligations" ;  although  he  adds  that  in 
his  opinion  it  would  be  "  inexpedient  that  any  position  now 
occupied  by  a  British  mission  inland  should  be  .  .  .  pre- 
cipitately abandoned."  Finally,  Sir  C.  MacDonald,  in  his 
Despatch  of  March  17,  1898,^  to  the  Marquis  of  Salisbury, 
positively  declares  that  in  view  of  the  Berthemy  convention 
of  1865,  ^s  modified  in  1895,  and  the  imperial  decree  of 
August,  1895,  ordering  the  protection  of  all  missionary 
establishments  in  China,  he  is  of  the  opinion  that  "  mis- 
sionaries have  the  right  to  acquire  property  for  the  pur- 
poses of  their  mission  in  all  parts  of  the  Chinese  Empire." 

The  Government  of  the  United  States  appears  to  have 
been  more  desirous,  or  less  disinclined,  than  the  British 
Government   to   support   the   establishment   of   permanent 

'  The  term  "  immediate  vicinity  "  has  been,  in  one  notable  instance, 
extended  "  at  the  Port  of  Kiukiang  a  manner  to  which  it  would  per- 
haps be  hard  to  find  a  parallel  elsewhere  in  China."  This  is  the  case 
of  the  Ruling  estate  and  the  surrounding  properties  leased  by  the 
Chinese  officials  to  individual  foreigners,  British,  American,  and 
Russian,  for  building  sanatoriums  and  summer  houses.  The  proper- 
ties aggregate  something  like  a  square  mile,  and  are  located  at  dis- 
tances ranging  from  about  6  to  about  16  miles  from  Kiukiang,  the 
port. — Pari  Papers,  China,  no.  i   (1903),  32. 

'  Pari.  Papers,  China,  no.  i  (1899),  60. 


45 1  ]  THE  CHRISTIAN  MISSIONARY  329 

residence  and  the  acquisition  of  property  by  its  mission- 
aries in  the  interior  of  China.  The  views  which  have  been 
iterated  and  reiterated,  by  the  successive  heads  of  the 
American  legation  at  Peking  and  the  state  department  at 
Washington,  both  in  connection  with  actual  cases  and  in 
the  abstract  discussion  of  the  general  question,  are  sub- 
stantially the  same.  On  one  hand,  it  has  never  been  denied 
by  them  that  the  treaties  which  China  has  concluded  with 
the  United  States,  or  with  any  other  foreign  nation  confer 
no  legal  right  upon  American  missionaries  to  reside  per- 
manently in  the  interior,  and  there  to  acquire  and  hold 
real  property;  on  the  other,  it  has  been  claimed  by  them, 
with  equal  persistence,  that  a  permissive  or  prescriptive  or 
quasi  legal  right,  as  it  is  variously  described,  has  accrued 
to  American  missionaries  in  certain  localities  in  China 
where  the  authorities  have,  by  express  permission  or  tacit 
acquiescence,  allowed  citizens  or  subjects  of  other  foreign 
Powers  to  be  permanently  located.  In  such  places  equality 
of  treatment  will  always  be  insisted  upon  by  the  United 
States  in  behalf  of  its  own  citizens.  In  other  localities, 
where  no  tolerance  has  been  accorded  any  foreigner  to 
settle,  as  a  permanent  resident,  the  United  States  leaves  it 
to  the  zeal,  enterprise,  and  ability  of  the  missionaries  them- 
selves to  blaze  a  fresh  field  for  their  pious  cultivation.  If 
they  meet  with  popular  opposition,  and  fail  in  their  attempt 
to  plant  their  outposts  in  new  territory,  the  United  States 
Government  regards  it  as  a  misfortune,  but  it  does  not 
hold  itself  bound,  as  in  fact  it  is  not  entitled  under  the 
treaties,  to  claim  for  its  own  missionaries  a  privilege  which 
has  not  been  enjoyed  by  those  of  other  foreign  states. 
Should  they  succeed  in  establishing  a  permanent  foothold 
in  a  new  locality  with  the  knowledge,  but  without  the  op- 
position, of  the  people  and  the  authorities,  it  countenances 
the  success  with  favor,  beholds  it  with  satisfaction,  and, 


330  THE  STATUS  OF  ALIENS  IN  CHINA  [452 

on  account  01  their  self-denial  and  philanthropic  motives, 
is  disposed  to  congratulate,  rather  than  to  censure,  them. 
It  besides,  considers  it  proper  and  advisable  for  its  diplo- 
matic and  consular  representatives  to  assist  the  mission- 
aries in  any  reasonable  effort  to  secure  grounds  for  the 
prosecution  of  their  business,  although  it  maintains  at  the 
same  time  that  they  have  no  right  to  insist  upon  acquiring 
property  in  such  new  localities.  In  other  words  the  effort 
on  the  part  of  the  missionaries  to  establish  a  permanent 
residence  in  inland  districts  where  no  tolerance  has  pre- 
viously been  extended  to  foreigners  other  than  as  tem- 
porary sojourners  on  travel,  as  well  as  the  primary  secur- 
ing of  land  or  house  property  therein  to  enable  them  to 
carry  on  their  proselytizing  labors,  must  be  their  own  in- 
dividual acts.  But  wherever  the  American  missionaries 
may  be,  in  the  interior  as  well  as  in  the  open  ports,  and 
in  whatever  character  they  may  be  there,  whether  as  per- 
manent residents  or  as  passing  travelers,  the  Government 
of  the  United  States  holds  that  they  with  everything  ap- 
pertaining to  them  are  entitled  to  the  protection  of  the 
local  authorities,  that  if  they  transgress  the  law  or  usage 
of  the  place,  they  must  be  proceeded  against  according  to 
treaty  provisions,  and  that  under  no  circumstances  will  it 
allow  its  citizens  to  be  subjected  to  expulsion  or  ejectment 
by  mob  violence  or  without  due  process  of  law. 

In  a  word,  the  United  States  Government,  recognizing 
it  to  be  "  the  inherent  and  inalienable  right  of  man  to 
change  his  home,"  is  not  disposed  to  discourage,  still  less 
to  prevent,  its  citizens  in  China  from  settling  in  the  interior 
of  China,  but  will,  on  the  other  hand,  remonstrate  against 
the  discontinuance  of  the  right  of  residence  and  of  hold- 
ing property  in  inland  districts  when  it  has  once  been  en- 
joyed by  its  own  citizens  or  those  of  other  foreign  powers 
through  the  sufferance  of  the  authorities ;  leaving  it  to  the 


453]  THE  CHRISTIAN  MISSIONARY  33 1 

Chinese  Government  and  its  agents  to  enforce,  if  they  can, 
the  restrictions  provided  in  the  treaties  on  the  right  of 
foreigners  to  reside  and  acquire  property  in  China  within 
the  limits  of  the  open  ports — a  restriction  which  is  a  usual, 
fair,  and  generally  necessary  condition  of  enjoying  the 
privileges  of  extraterritoriality/ 

It  is  to  be  noted,  however,  that  so  far  as  the  missionaries 
who  desire  to  acquire  and  hold  property  in  the  interior  in 
the  name  of  some  organized  missions,  to  which  they  belong, 
are  concerned,  the  question  has  been  settled  by  the  four- 
teenth article  of  the  x\merican  treaty  of  Shanghai,  October 
8,  1903,  which  provides: 

Missionary  Societies  of  the  United  States  shall  be  permitted 
to  rent  and  to  lease  in  perpetuity,  as  the  property  of  such 
Societies,  buildings  or  lands  in  all  parts  of  the  Empire  for 
missionary  purposes,  and,  after  the  title-deeds  have  been  found 
in  order  and  duly  stamped  by  the  local  authorities,  to  erect 
such  suitable  buildings  as  may  be  required  for  carrying  on 
their  good  work. 

As  regards  American  missionaries  in  China  belonging  to  no 
particular  church  or  missionary  society,  they  now  stand 
where  they  have  always  stood.     In  his  instructions  to  Min- 

1  The  statement  of  the  views  of  the  United  States  Government  given 
above  is  based  on  the  following  despatches  and  instructions :  Mr. 
Low  to  Mr.  Beebe,  Jan.  15,  1873,  For.  Rel.,  1875,  pt.  i,  p.  338;  Mr. 
Avery  to  Mr.  De  Lano,  Dec.  28,  1874,  For.  Rel.,  1875,  pt.  i,  p.  334; 
Mr.  Avery  to  Mr.  Fish,  June  i,  1875,  For.  Rel.,  1875,  Pt-  U  p.  332;  Mr. 
Fish  to  Mr.  Avery,  July  30,  1875,  For.  Rel.,  1875,  pt.  i,  p.  398;  Mr.  Cad- 
walader  to  Mr.  Avery,  Aug.  11,  1875,  For.  Rel.,  1875,  pt.  i,  p.  399;  Mr. 
Angell  to  Messrs.  Murray  and  Hunter,  July  30,  1881,  For.  Rel.,  1881, 
p.  289;  Mr.  Holcombe  to  Mr.  Carrow,  May  6,  1882,  For.  Rel..  1882,  p. 
139;  Mr.  Frelinghuysen  to  Mr.  Young,  July  3,  1882,  For.  Rel.,  1882,  p. 
142;  Mr.  Dcnby  to  Mr.  Bayard,  Oct.  9,  1886,  For.  Rel.,  1886,  p.  96;  Mr. 
Denby  to  Mr.  Bayard,  May  19,  1888.  For.  Rel.,  1888,  pt.  i,  p.  270;  Mr. 
Bayard  to  Mr.  Reid.  July  17,  1888,  For.  Rel..  1888,  pt.  i,  p.  325. 


2^2,2  THE  STATUS  OF  ALIENS  IN  CHINA  [454 

ister  Rockhill,  March  22,  1906/  as  to  their  right  to  acquire 
property  in  the  interior  of  China,  Secretary  of  State  Root 
states  that  an  examination  by  the  department  of  the  various 
treaties  with  China  "  clearly  shows  such  a  right  to  be  legally 
non-existent  ".  They  may  claim  in  certain  localities  "  an 
equitable  or  quasi  legal  right  based  upon  custom  " ;  and  the 
circumstances  under  which,  and  the  extent  to  which  the 
department  will  support  them  in  the  obtainment  of  such  a 
right  are  thus  described : 

In  meritorious  cases,  in  which  the  circumstances  were  such 
as  to  give  rise  to  no  objection  on  other  grounds  than  the  un- 
willingness of  China  to  consent  to  sales  of  land  to  Americans 
in  the  interior,  this  department  would  find  great  force  in  the 
argument  that  inasmuch  as  China,  through  her  officials,  has  in 
numerous  instances  permitted  the  subjects  of  other  nationali- 
ties to  purchase  land  in  certain  localities  in  the  interior,  this 
Government  may,  with  good  reason,  consider  such  purchases 
as  precedents  establishing  the  right  of  Americans,  whether 
members  or  non-members  of  a  missionary  body,  to  make  sim- 
ilar purchases. 

It  is  to  be  pointed  out  that  Mr.  Low's  views  on  the 
measure  of  protection  to  be  extended  to  American  property 
in  the  interior  stand  unsupported  by  the  views  of  the  de- 
partment of  state  and  of  other  American  representatives  at 
Peking.     His  views  are  thus : 

2nd.  If  property  be  purchased  and  buildings  erected  thereon, 
and  they  should  be  damaged  or  destroyed  by  mob  or  other 
violence  of  the  Chinese,  the  claim  for  damages  would  be  an 
equitable  rather  than  a  legal  one;  and  if  the  local,  or  the  im- 
perial, authorities  should  refuse  to  respond,  upon  the  ground 
that  the  property  was  purchased  in  violation  of  treaty-rights,  it 
is  extremely  doubtful  if  our  Government  would  sanction  any 

'  H.  Ex.  Doc.  I,  59  Cong.,  2  Sess.,  p.  277. 


455]  -^^^  CHRISTIAN  MISSIONARY  333 

proceedings   which  might  be   instituted   by   its   diplomatic   or 
consular  officers  to  collect  it. 

It  was  added,  also,  that  property  rented  for  permanent 
residence  inland  "  would  be  subject  to  the  same  rules  and 
liable  to  the  same  disabilities  as  purchased  property."  ^ 

In  purchasing  or  leasing  land  or  houses  in  the  interior 
the  principles  and  rules  which  are  provided  by  the  treaties 
for  similar  acts  in  the  open  ports  do  not  apply.  In  1893 
when  the  officials  at  Nanking  promulgated  a  new  rule  re- 
quiring foreigners  desirous  of  acquiring  property,  first  to 
agree  with  the  elders  and  gentry  of  the  place,  and  then  re- 
port to  the  authorities  for  an  official  survey  of  the  ground, 
the  department  of  state  instructed  Mr.  Denby  that  "  the 
adoption  of  such  a  measure  at  a  treaty  port  would  un- 
doubtedly be  a  contravention  of  the  treaty,  being  an  inter- 
ference by  the  local  authorities,  in  advance,  to  prescribe 
initial  negotiations  otherwise  than  directly  between  the 
lessor  and  the  lessee,  but  that  he  "  cannot  be  expected  to 
intervene  in  such  action  outside  of  the  treaty  ports,"  inti- 
mating, at  the  same  time,  a  desire  to  know  on  what  ground 
his  notification  was  made  to  the  Taotai  of  Nanking,  through 
the  acting  consul,  that  the  proposed  rule  would  not  be  ac- 
quiesced in  or  acted  upon  by  the  legation."  In  191 1,  with 
a  view  to  the  avoidance  of  complications  usually  attendant 
upon  foreigners  acquiring  property  in  the  interior,  the 
Waiwu  Pu,  after  consultation  with  the  foreign  representa- 
tives at  Peking,  drew  up  six  rules  governing  the  matter, 
and  sent  instructions  to  the  Provinces  to  enforce  their  ob- 
servance. These  rules  are :  ( i )  that  property-owners  shall 
be  free  to  sell  their  property  and  the  missions  desiring  to 
buy  shall  not  coerce  them  to  sell;   (2)   that  the  missions. 

1  For.  Rel.,  1875,  pt.  i,  p.  338. 

*  Mr.  Gresham  to  Mr.  Denby,  June  5,  1893,  For.  Rel.,  1893,  P-  233. 


334  T^^  STATUS  OF  ALIENS  IN  CHINA  [456 

shall,  before  purchasing  any  property,  consult  the  local  offi- 
cials and  request  them  to  make  an  official  survey  of  the 
ground  and  ascertain  the  records:  (3)  that  after  the  pur- 
chase is  made,  they  shall  apply  to  the  authorities  for  a  tax- 
deed;  (4)  that  the  property  purchased  shall  always  remain 
the  property  of  the  mission,  and  a  tablet  shall  be  erected 
to  record  its  ownership;  (5)  that  if  the  mission,  after  pur- 
chasing a  property  should  sell  it  to  Chinese,  they  are  pro- 
hibited clandestinely  to  sell  it  to  foreigners;  (6)  that  the 
local  authorities  shall  forbid  the  purchase  of  property  in 
all  cases  where  the  property  is  purchased  in  the  name  of  a 
mission,  but  not  to  be  used  for  the  purposes  of  the  mission, 
or  where  it  is  to  be  used  for  foreign  merchants  for  trading 
purposes.^ 

§  5.  Prosecution  of  Secular  Work 

The  question  of  the  right  of  the  missionary  to  engage  in 
secular  work  in  the  interior,  though  an  important  one,  has 
not  been  seriously  raised.  The  treaties  are  silent  on  the 
subject:  they  contain  no  provision  which  might  be  cited  in 
support  of  a  claim  to  such  a  right.  In  practice,  however, 
all  kinds  of  work  are  tolerated  in  the  interior.  The  mis- 
sionaries maintain  printing  establishments,  bookbinderies, 
industrial  schools,  dispensaries,  boarding  houses  for  stran- 
gers ;  they  are  doctors,  colporteurs,  newspaper  correspon- 
dents: they  do  washing  and  sewing;  they  manufacture  and 
sell  all  kinds  of  furniture.  It  is,  of  course,  understood 
that  the  profits  of  these  various  enterprises  go  to  the  general 
fund  of  the  mission,  and  are  used  to  promote  religious  pur- 
poses. In  1896  an  American  missionary  at  Tak  Cheo, 
Kansuh,  inquired  of  Mr.  Denby  if  he  could  lawfully  engage 
in  "  agriculture,  stock  raising,  or  trading."  as  a  means  of 
support  while  laboring  as  a  missionary  among  the  Thibetan 

*  Eastern  Times,  Shanghai.  April  19,  191 1. 


457]  ^^^  CHRISTIAN  MISSIONARY  335 

border  tribes."  ^  The  minister  replied  that  he  was  unable 
to  draw  a  line  between  pursuits,  such  as  those  mentioned 
above,  already  permitted  by  the  Chinese  authorities  and 
those  proposed  by  the  inquirer.  In  apprising  the  state  de- 
partment of  his  reply  Mr.  Denby  observed  that  the  ques- 
tion was  one  of  first  impression,  and  that  in  his  view 

If  the  particular  enterprise  engaged  in  any  locality  is  not  pro- 
hibited by  the  officials  and  is  allowed  to  be  prosecuted  without 
objection,  it  would  finally  be  sanctioned  by  usage,  and  might 
be  entitled  to  protection  of  the  treaty  powers. 

The  department  considered  his  views  to  be  "  discreet ". 
It  also  expressed  the  opinion  that  while  some  of  the  secular 
operations  tolerated  by  the  local  authorities,  such  as  the 
manufacture  of  furniture,  laundry,  and  sewing,  were 
"  not,  obviously,  part  of  the  privilege  of  residence,"  still  if 
they  were  for  any  reason  opposed,  the  argument  "  might 
be  validly  advanced,  the  case  arising,  that  the  residential 
privilege  embraces  all  normal  uses  to  which  the  ground  and 
the  belongings  can  be  applied  " ;  adding  that  "  if  attempt 
be  made  at  any  time  to  restrict  the  existing  usage,  the  pro- 
position herein  outlined  would  afford  ground  upon  which  to 
base  remonstrance  and  conduct  suitable  argument."  ^ 

*  Mr.  Simpson  to  Mr.  Denby,  Nov.  18,  1896,  For.  Rel,  1897,  p.  106. 
'  Mr.  Rockhill  to  Mr.  Denby,  March  29,  1897,  ibid.,  p.  105. 


CHAPTER  XVII 
Protection  of  Aliens  and  Alien  Property 

The  treaties  generally  provide  for  the  protection  of  for- 
eigners in  China  by  the  Chinese  authorities.  They  are  to 
be  defended  from  insult  or  injury  of  any  sort.  If  their 
dwellings  or  property  be  threatened  or  attacked  by  mobs, 
incendiaries,  robbers,  or  other  violent  persons,  the  local 
officials  are  required  to  take  the  necessary  steps  for  the 
recovery  of  the  stolen  property,  the  suppression  of  disorder 
and  the  arrest  of  the  guilty  parties,  who  are  to  be  punished 
according  to  the  law  of  the  land.  Some  treaties  contain 
express  provisions  to  the  effect  that  in  such  contingencies 
of  danger  to  the  persons  or  property  of  foreigners,  the  local 
officials,  on  requisition  of  the  consul  or  without  it,  shall 
despatch  soldiers  to  the  scene  of  trouble  for  the  purpose 
already  mentioned.^  In  a  few  treaties  it  is  also  stipulated 
that  the  punishment  of  the  offenders  cannot  prejudice  the 
prosecution  of  suits  against  them,  by  the  parties  entitled 
thereto,  to  recover  damages  for  the  losses  sustained.^  But 
if  the  authorities,  whose  charge  it  is,  fail  to  arrest  the 
guilty  persons,  no  other  compensation  can  be  required  of 
the  Chinese  Government  than  the  punishment  of  these  au- 
thorities according  to  the  laws  of  China.' 

'  See,  especially,  American  treaty  of  June  i8,  1858,  art.  xi;  French 
treaty  of  June  27,  1858,  art.  xxxvi ;  Belgian  treaty  of  March  2,  1865, 
art.  xvii. 

^  See,  especially,  treaty  with  France,  June  27,  1858,  art.  xxxvi;  with 
Germany,  Sept.  2,  1861,  art.  xxxvi. 

'  See,  especially,  treaty  with  Denmark,  July  13,  1863,  art.  xviii ;  with 
Spain,  Oct.  10,  1864,  art.  xvi ;  with  Belgium,  Nov.  2,  1865,  art.  xvii; 
with  Italy,  Oct.  26,  1866,  art.  xviii ;  with  Austria-Hungary,  Sept.  2, 
1869,  art.  xli. 

336  [458 


459]  PROTECTION  OF  ALIEN  PROPERTY  337 

The  measure  of  protection  provided  by  the  treaties  for 
foreigners  in  China  is  variously  described  as  being  special, 
full  and  entire,  complete,  or  the  fullest.  But  in  view  of  the 
treatment  of  foreigners  in  China,  immediately  antecedent 
to  the  commencement  of  the  conventional  period,  and  of 
the  provision  in  the  American  treaty  of  1844,  reproduced 
in  that  of  1858,  that  citizens  of  the  United  States  in  China 
peaceably  attending  to  their  affairs  are  "  placed  on  a  com- 
mon footing  of  amity  and  good  will  with  subjects  of 
China  ",  it  would  appear  reasonable  to  suggest  that  the 
different  terms  employed  in  predicating  the  requisite  meas- 
ure of  protection  all  mean  the  same  thing:  that  foreigners 
in  China  shall  be  protected  by  the  authorities  to  the  same 
degree  as  Chinese  subjects  are;  it,  of  course,  being  pre- 
sumed that  each  country  exercises  a  most  vigilant  care  in 
protecting  its  own  nationals. 

In  the  protection  of  subjects  or  citizens  of  treaty  Powers 
no  distinction  based  on  their  whereabouts  in  China  can  be 
made.  The  Chinese  authorities  are  required  equally  to 
protect  them,  whether  residing  at  the  open  ports  or  en- 
gaged in  traveling  or  in  missionary  operations  in  the  in- 
terior. The  British  treaty  of  1858  provides  that  the  full- 
est protection  is  to  be  afforded  to  the  persons  and  property 
of  British  subjects  "  wherever  these  shall  have  been  sub- 
jected to  insult  or  violence."  The  American  treaty  of  the 
same  year  stipulates  for  the  protection  by  the  local  authori- 
ties of  "  all  citizens  of  the  United  States  of  America  in 
China."  The  protection  clauses  in  the  treaties  with  other 
foreign  states  are  clothed  in  similarly  comprehensive  terms.  ^ 

In  actual   practice  the  efforts  of   the   Chinese   Govern- 

'  It  is  interesting  to  note  that  while  the  thirty-sixth  article  in  the 
French  text  of  the  treaty  of  1858  stipulates  for  protection  of  French 
citizens  without  any  qualification,  the  same  article  in  the  Chinese 
text  mentions  only  "  Frenchmen  at  the  various  ports  open  to  foreign 
trade." 


338  THE  STATUS  OF  ALIENS  IN  CHINA  [460 

ment  and  local  authorities  to  insure  the  safety  of  foreign- 
ers in  China  are  not  infrequently  aided  by  their  own  Gov- 
ernments, under  normal  conditions  the  security  of  the 
lives  and  property  of  the  foreign  residents  or  travelers  in 
the  interior  depends,  naturally  and  necessarily,  upon  the 
local  authorities  while  those  who  reside  in  the  open  parts 
are  under  the  immediate  protection  of  the  local  police, 
Chinese  or  foreign,  as  the  case  may  be,  the  consuls,  and  the 
Chinese  authorities,  supported  by  foreign  as  well  as  Chinese 
warships.  When  a  popular  outbreak  occurs  at  an  inland 
point  where  foreign  persons  or  property  may  be  in  danger, 
it  is  not  uncommon  to  see  foreign  gunboats  dispatched  to 
the  scene  of  disturbance,  if  such  access  is  possible,  to  as- 
sist the  local  authorities  in  carrying  out  protective  meas- 
ures;^ and  if  the  times  become  generally  turbulent,  as  in 

*  The  question  of  the  right  of  foreign  gunboats  to  visit  inland  points 
was  somewhat  warmly  discussed  in  1903  by  the  diplomatic  and 
naval  representatives  of  the  United  States  in  China.  The  United 
States  gunboat  "  Villalobos,"  apparently  on  the  initiative  of  her  own 
commander,  made  a  visit  to  Nanchang  on  Poyang  Lake,  which  pro- 
voked a  protest  by  the  Taotai  at  Kiukiang  on  the  ground,  among 
others,  that  the  presence  of  foreign  armed  vessels  in  an  inland  dis- 
trict might  give  occasion  to  bad  men  for  making  trouble.  In  an  in- 
struction to  the  commander  of  the  "  Villalobos,"  approving  his  visit, 
Rear-Admiral  Evans,  in  command  of  the  American  Asiatic  Fleet, 
also  authorized  him  to  state  to  the  Taotai  and  other  Chinese  that  the 
American  gunboats  "  are  always  amply  provided  for  dealing  with  '  bad 
men,' "  and  they  would,  without  further  instructions,  "  administer 
severe  and  lasting  punishment "  to  them,  should  they  indicate  any 
desire  "to  pay  other  than  proper  respect  to  American  life  and  prop- 
erty;" that  the  Chinese  officials  were  expected  to  suppress  all  disorder 
and  give  ample  protection  to  Americans,  but  that  if  they  should  fail 
to  do  so,  the  American  gunboats  would  take  in  hand  "the  question  of 
adequate  and  proper  protection";  and  that  "In  order  to  satisfy  our- 
selves that  the  various  local  authorities  are  properly  [protectmg 
Americans]  .  .  .  our  gunboats  will  continue  to  navigate  the  Poyang 
Lake  and  the  various  other  inland  waters  of  China  wherever  Amer- 
icans may  be,  and  where,  by  treaty  with   China,  they  are  authorized 


461]  PROTECTION  OF  ALIEN  PROPERTY  339 

the  case  of  a  civil  or  international  war,  it  is  not  unusual 
on  the  part  of  the  foreign  legations  and  consulates  to  recall 
their  nationals  in  the  interior  to  open  ports,  where  con- 
certed measures  are,  in  such  cases,  frequently  taken  by  the 

to  engage  in  business  or  reside  for  the  purpose  of  spreading  the 
gospel." — For.  Rel,  1903,  p.  87. 

On  being  apprised  of  the  substance  of  these  instructions,  and  in  re- 
ferring to  the  protest  of  the  Taotai,  Minister  Conger  requested  Rear- 
Admiral  Evans  to  point  out  the  provisions  which  gave  the  American 
gunboats  the  right  to  go  wherever  they  pleased,  in  the  waters  of 
China,  except  on  rivers  leading  to  open  ports.  The  Rear-Admiral,  in 
his  reply  of  August  11,  1903,  stated  that  although  he  might  be  unable 
to  point  out  any  specific  provision,  as  requested  of  him,  in  the  treaties 
concluded  between  China  and  the  United  States,  he  considered  that 
American  gunboats,  under  the  favored  nation  clause,  were  entitled  to 
the  same  rights  in  the  Poyang  Lake  and  the  neighboring  waters  which 
were  exercised  by  the  gunboats  of  various  other  nationalities  for 
similar  purposes ;  and  that  besides,  he  considered  his  duty  to  watch 
over  and  protect  the  lives  and  property  of  American  citizens  engaged 
in  any  lawful  pursuit  in  China,  and  to  keep  himself  informed  of  their 
conditions,  and  be  ready  instantly  to  send  an  armed  force  to  wherever 
it  was  necessary. — For.  Rel.,  1903,  p.  88. 

The  question  was  finally  referred  to  Washington,  and  Secretary  of 
State  Hay,  in  his  reply  of  October  7,  1903,  to  the  request  of  the  Sec- 
retary of  the  Navy  to  make  such  comment  as  he  might  desire,  ob- 
served : 

"  That  the  Department  is  inclined  to  the  opinion  that  Rear-Admiral 
Evans  is  right  in  his  contention  that  our  gunboats  may  visit  the  inland 
ports  of  China,  including  those  which  are  not  treaty  ports.  Even  if 
this  right  were  not  explicitly  granted  to  us  by  treaty,  Rear-Admiral 
Evans  is  unquestionably  right  in  using  it  when  like  ships  of  other 
powers  are  constantly  doing  so.  His  reasons  for  wishing  to  visit 
these  places,  as  expressed  in  his  communication  of  August  ir,  1903, 
to  Minister  Conger,  are  absolutely  convincing. 

"  This  Department  thinks,  however,  that  article  Hi  of  the  British 
treaty  of  1858  with  China,  which  is  reproduced  in  article  xxxiv  of  the 
Austro-Hungarian  treaty  of  1869  gives  full  authority  for  his  course." 
— For.  Rel.,  1903,  p.  90.  Here  followed  the  text  of  the  article  in  the 
British  treaty,  which,  in  part,  provides  that  "  British  ships  of  war 
coming  for  no  bestial  purpose,  or  being  engaged  in  the  pursuit  of 
pirates,  shall  be  at  liberty  to  visit  all  ports  within  the  dominions  of 
the  Emperor  of  China." 


340  THE  STATUS  OF  ALIENS  IN  CHINA  [462 

Treaty-Powers  for  the  joint  protection  of  nationals,  or  to 
the  Legation  Quarter  in  Peking,  which,  by  treaty,  may  be 
put  in  a  state  of  defense.  By  special  arrangements  with 
the  Chinese  Government  or  the  local  authorities,  foreign 
marines  and  troops  were  at  different  times  in  the  past 
landed  in  the  foreign  settlements  at  the  open  ports  to  in- 
sure the  safety  of  the  foreigners  and  their  property  situated 
therein.^ 

It  is  also  to  be  stated  that  in  a  crisis  or  civil  commotion 
or  anti-foreign  outbreak,  whether  actual  or  apprehended, 
white  foreign  residents  in  the  interior  are  willing  to  with- 
draw to  open  ports;  they  commonly  leave  their  property 
behind  in  the  care  of  the  local  officials,  who  are  thus  sub- 
ject to  an  onerous  responsibility  and  sometimes  to  practical 
difficulties,  but  who,  as  a  rule  prove  equal  to  this  extra- 
ordinary task.  The  procedure  has  often  been  followed. 
May  25,  1853,  Mr.  H.  Marshall,  United  States  commis- 
sioner to  China,  for  instance,  in  response  to  an  appeal  from 
the  American  residents  in  Fuchow  for  the  protection  made 

'  Ex-Secretary  of  State  Elihu  Root,  in  his  presidential  address  before 
the  American  Society  of  International  Law,  April  28,  1910,  "The 
Basis  of  Protection  to  Citizens  Residing  Abroad"  (4  Am.  Jour,  of 
Intern.  Law,  516),  stated  with  reference  to  the  landing  of  armed 
forces  in  a  foreign  country  for  the  protection  of  their  nationals : 
"  Such  a  course  is  undoubtedly  often  necessary,  but  is  always  an  im- 
peachment of  the  effective  sovereignty  of  the  government  in  whose 
territory  the  armed  demonstration  occurs,  and  it  can  be  justified  only 
by  unquestionable  facts  which  leave  no  doubt  of  the  incapacity  of 
the  government  of  the  country  to  perform  its  international  duty  of 
protection.  It  leads  to  many  abuses,  especially  in  the  conduct  of 
those  nationals  who,  feeling  that  they  are  backed  up  by  a  navy,  act  as 
if  they  were  superior  to  the  laws  of  the  country  in  which  they  are 
residing  and  permit  their  sense  of  immunity  to  betray  them  into  arro- 
gant and  offensive  disrespect."  The  same  practice,  it  may  be  added,  also 
induces  clamour  on  the  part  of  the  missionaries  in  the  interior  of 
China,  often  to  the  amazement  even  of  their  own  Government,  for 
the  presence  of  gunboats  at  their  missionary  stations  on  seeing  the 
slightest  symptoms  of  trouble  or  disturbance. 


463]  PROTECTION  OF  ALIEN  PROPERTY  341 

in  view  of  the  then  threatened  approach  of  the  Taiping 
rebels,  gave  them  this  order :  ^ 

You  will  cause  an  inventory  of  your  property,  real  and  per- 
sonal, to  be  made  out  in  due  form,  exhibiting,  item,  the  value  as 
estimated  by  two  disinterested  valuers.  Should  any  emergency 
arise  which  immediately  threatens  your  persons  or  property, 
you  will  deposit  the  said  inventory  or  the  duplicate  with  the 
chief  local  authority  at  Fuchow,  and  at  the  same  time  you 
cause  seals  to  be  placed  upon  your  effects  and  upon  your  doors. 
You  will  then  request  the  said  chief  local  authority  to  place  a 
military  guard  over  said  property  for  its  especial  protection,  as 
the  treaty  provides.  You  will  say  to  the  chief  local  authority 
of  Fuchow  that  these  proceedings,  on  your  part,  are  taken  by 
my  instructions  to  you,  in  order  that  there  may  be  no  mistake 
on  his  part  of  the  intention  of  the  United  States  to  hold  China 
responsible  under  the  treaty  to  indemnify  the  American  citizens 
for  any  loss  or  damage  their  persons  may  sustain  by  the  law- 
lessness or  violence  of  the  subjects  of  China,  and  that  he  may 
regulate  his  actions  accordingly. 

The  difficult  position  in  which  Chinese  officials  of 
Kiangsi  Province  were  placed  in  1900  by  foreigners  who 
left  their  property  in  their  care  was  graphically  described 
by  British  Consul  W.  J.  Clennell  of  Kiukiang  in  his  report,^ 
on  Kiangsi.     He  said : 

It  must  be  admitted  that  the  position  of  the  Chinese  officials 
during  the  crisis  was  one  of  great  difficulty.  At  a  time  of 
extraordinary  public  danger  and  excitement,  with  popular  feel- 
ing roused  to  fever  heat  all  over  the  country,  with  anti-foreign 
or  anti-dynastic  movements  breaking  out  in  more  or  less  seri- 

*  H.  Ex.  Doc.  123,  33  Cong.  Sess.,  162.  Instructions  of  a  similar 
nature  were  issued  by  Mr.  H.  Marshall  to  the  American  Consulate  of 
Canton,  September  22,  1853,  ibid.,  p.  276. 

•  Pari.  Papers,  China,  no.  i  (1903),  i,  2i3- 


342  THE  STATUS  OF  ALIENS  IN  CHINA  [464 

ous  rioting  on  every  side,  while  the  issue  of  the  greater  struggle 
in  the  North  yet  hung  in  the  balance,  and  a  large  proportion 
of  the  populace,  and  even  of  the  better  instructed,  sincerely 
believed  in  the  Boxers'  claim  to  invulnerability,  or,  at  the  least, 
supernatural  assistance,  while  every  day  brought  reports,  true 
or  false,  of  fresh  alarms,  and  no  one  knew  what  the  morrow 
might  bring  forth,  or  how  far  and  how  soon  this  province 
might  be  involved  in  the  general  upheaval,  while  trade  was  at 
a  standstill,  throwing  thousands  everywhere  out  of  employ- 
ment, in  a  season  when  drought  had  destroyed  the  harvest  and 
caused  widespread  suffering,  the  officials  had  suddenly  thrown 
on  their  hands  for  safekeeping  an  extraordinarily  miscellan- 
eous collection  of  private  property,  ranging  from  surgical  in- 
strument-cases to  boxes  of  winter  clothing,  and  from  brood 
mares  and  Australian  bulls  to  cats  and  dogs,  not  to  mention 
the  books  and  fittings  of  mission  chapels,  household  furniture 
of  all  kinds,  magic  lanterns,  pianos,  and  in  fact  almost  every 
movable  thing  that  can  be  named.  In  some  cases,  probably  in 
most,  careful  inventories  had  been  made  out  and  filed  in  the 
Yamens,  but  this  was  by  no  means  so  in  every  instance. 

Mr.  Clennell  also  stated  that  foreigners  on  their  return 
found  that  some  articles  were  lost  or  stolen  but  that  in  some 
cases  the  stolen  property,  such  as  ponies  and  cattle,  were 
recovered  and  in  some,  compensation  was  given.  "As 
things  were,"  he  concluded,  "  and  especially  in  view  of  the 
common  belief  that  the  evacuation  would  be  a  permanent 
one,  wonder  can  only  be  felt  that  so  small  a  proportion  of 
the  foreigners'  possessions  went  astray  ". 


CHAPTER  XVIII 
Subjects  of  Non-Treaty  Powers 

As  has  been  stated  in  Chapter  XII  the  protege  system 
which  flourishes  in  Turkey,  Morocco,  and  elsewhere,  does 
not  exist  in  China.  The  Chinese  Government  has  always 
maintained  its  right  of  control  over  the  subjects  of  non- 
treaty-powers  within  its  territory,  and  the  treaty  powers 
have  never  contested  the  claim ;  on  the  contrary,  by  express 
declarations  and  consistent  practice  of  abstention  from  in- 
terference in  behalf  of  such  persons  in  China,  they  have 
unquestionably  recognized  its  validity.  The  protection 
which  they  have  from  time  to  time  accorded  the  subjects  of 
non-treaty  powers  has  been  confined  to  the  exercise  of  good 
offices,  as  the  term  is  generally  understood. 

On  the  part  of  the  Chinese  authorities  two  courses  of 
action  have  been  pursued  in  the  actual  treatment  of  the 
subjects  of  nations  maintaining  no  treaty  relations  with 
China.  In  the  early  years  of  foreign  intercourse,  though 
fully  conscious  of  their  unchallenged  right  to  do  it,  they 
generally  manifested  a  disinclination,  due  partly  to  their 
want  of  familiarity  v/ith  the  usages  of  the  west  and  partly 
to  the  practical  difficulty,  in  their  minds,  of  distinguishing 
by  sight  the  subjects  of  one  western  nation  from  those  of 
another,  to  adopt  regulations  looking  to  the  control  of 
the  persons  of  non-treaty  powers.  The  fact  that  nearly 
all  foreigners  in  China  formed  communities  of  their  own, 
segregated  from  the  Chinese  world,  as  it  were,  also  en- 
couraged the  Chinese  authorities  to  think  that  special  regu- 
465]  343 


344  T^^  STATUS  OF  ALIENS  IN  CHINA  [466 

lations  for  the  purpose  stated  were  unnecessary.  The  re- 
sult of  this  policy  soon  proved  its  inexpediency.  In  the 
words  of  an  American  diplomat  written  in  1858,  "  there 
is  an  absolute  immunity  of  the  citizens  of  non-treaty 
powers.  A  Saxon,  or  Swede/  or  Dane,  or  Prussian  does 
as  he  pleases.  He  defies  law,  commits  crime  with  im- 
punity, refuses  the  payment  of  duties  or  debts."  ^  Be- 
sides, designing  merchants  belonging  to  some  one  of  the 
non-treaty  powers,  arrogated  to  themselves  the  title  of  con- 
sul, under  cover  of  which  they  committed  smuggling  and 
other  illegal  acts.  When  under  the  majority  of  the  treaties 
revised  in  1858  foreigners  of  nations  having  treaties  with 
China  gained  the  right  to  travel  in  the  interior,  the  Chinese 
Government  began  to  see  the  danger  of  having  subjects  of 
non-treaty  powers  wander  into  all  parts  of  the  Empire 
unrestrained.  Accordingly  it  laid  the  situation  before  the 
American  minister  and  asked  him  for  advice  as  to  the  con- 
trol of  such  subjects,  stating  at  the  same  time  that  it  was 
"  plain  "  that  they  "  should  not  be  placed  on  the  same  foot- 
ing as  the  subjects  of  those  nations  having  treaties."  ^  The 
minister  gave  two  practical  suggestions :  "  Make  treaties 
with  such  powers,  small  and  great,  as  approach  them 
[Chinese  authorities]  for  that  purpose"  and  "resolutely 
refuse  to  recognize  these  interloping  ofificials  [merchant- 
consuls  of  non-treaty  powers]".* 

During  the  last  half  a  century  the  policy  of  the  Chinese 

'  As  a  matter  of  fact,  a  treaty  of  peace,  amity,  and  commerce  was 
concluded  between  China  and  Sweden  and  Norway,  March  20,  1847, 
but  it  may  be  that  no  consuls  were  appointed  by  the  latter  up  to  1858. 

*  Air.  Reed  to  Mr.  Cass,  July  29,  1858.  S.  Ex.  Doc.  30,  36  Cong.,  i 
Sess.,  p.  382. 

'  Imperial  Commissioners  to  Mr.  Reed,  Nov.  i.  1858.  S.  Ex.  Doc.  30, 
36  Cong.,  I  Sess.,  p.  314. 

♦  Ibid.,  p.  516. 


467 j  SUBJECTS  OF  NON-TREATY  POWERS  345 

Government  appears  to  have  been,  on  one  hand,  to  grant  a 
status  to  the  subjects  of  non-treaty  powers  by  according 
to  them  certain  privileges  which  were  enjoyed  by  the  sub- 
jects of  treaty  powers,  and,  on  the  other,  to  place  them 
within  the  more  perfect  control  of  the  Chinese  authorities. 
Thus  take,  for  example,  the  right  to  trade.  In  1861  the 
Tsungli  Yamen  instructed  the  superintendent  of  the  trade 
of  the  southern  ports  to  prohibit  foreigners  of  non-treaty 
states  to  trade  at  any  open  port  other  than  those  situated 
along  the  coast.  ^  The  following  year  they  were  forbidden 
to  trade  at  any  port  without  first  obtaining  the  consent  of 
some  recognized  consul  at  that  port  to  exercise  his  friendly 
offices  in  their  behalf;  failing  which,  in  the  phraseology  of 
the  instructions,  "  not  only,  they  will  not  be  allowed  to  trade 
there,  but  if  they  are  maltreated  or  injured,  the  local  offi- 
cials will  not  hold  themselves  responsible."  '  But  in  recent 
times  they  are  expressly  authorized  by  imperial  decrees  to 
reside  and  trade,  for  instance,  in  the  ports  opened  by  China 
of  her  free  will,  as  long  as  they  submit  to  the  laws  and 
authorities  of  China. 

The  privilege  of  the  subjects  of  non-treaty  states  to 
travel  in  the  interior  of  China  has  undergone  a  similar 
course  of  development.  In  1861,  when  there  existed  as  yet 
no  treaty  relations  between  the  Netherlands  and  China,  a 
Netherlander,  who  had  traveled  to  Peking  under  a  passport 
issued  by  the  Shanghai  Taotai,  was  taken  back  to  that  city 
by  order  of  the  Tsungli  Yamen,  which  at  the  same  time  sent 
instructions  to  the  Provinces  stating  that  "  the  subjects  of 
non-treaty  powers  shall  not  be  allowed  to  travel  in  the  in- 
terior." ^  Subsequently,  regular  traveling  passports  were 
permitted  to  be  issued  to  those  foreigners  whose  nations 

'68  New  Coll.   (General),  34.  ^  Ibid. 

*  70  New  Coll.  (General).  28. 


340  THE  STATUS  OF  ALIENS  IN  CHINA  [468 

had  no  treaties  with  China,  but  who  were  placed  by  their 
own  Government  under  the  friendly  protection  of  some 
legation  in  Peking.  This  practice  was  recently  discon- 
tinued. In  1908,  on  reference  by  the  Hukuang  Viceroy 
for  a  decision  of  the  question  raised  by  the  Customs  Taotai 
at  Hankow  whether  regular  passports  might  continue  to 
be  issued  to  Turkish  subjects  under  the  friendly  protection 
of  the  German  diplomatic  and  consular  representatives  in 
China,  as  when  under  the  care  of  the  French  legation,  the 
W'aiwu  Pu  rendered  this  ruling: 

We  find  that  it  has  already  been  declared  that  subjects  of  non- 
treaty  powers  while  on  travel  in  China  shall  be  treated  in  the 
same  manner  as  Chinese  are,  and  therefore  passports  need  no 
longer  be  issued  to  them.  In  all  respects  such  subjects  shall 
hereafter  be  looked  upon  as  if  they  were  Chinese,  in  order  to 
safeguard  China's  right  of  jurisdiction.^ 

Under  the  instructions  of  the  foreign  office  issued  to  the 
Provinces  in  1909  there  are  provided,  for  subjects  of  non- 
treaty  powers  desiring  to  travel  in  the  interior,  special  pro- 
tection papers,  which  they  may  obtain  on  application,  by 
themselves  or  through  some  consul  willing  to  accord  them 
the  benefit  of  his  good  offices,  to  a  commissioner  of  foreign 
affairs  or  a  customs  Taotai.  The  local  authorities  are  re- 
quired, "  upon  finding  the  papers  to  be  proper,  to  extend 
to  the  holders  due  protection  and  look  upon  them  as  if 
they  were  Chinese  subjects."  '^ 

Nor  has  China  relaxed  in  the  exercise  of  her  jurisdic- 
tion over  the  subjects  of  non-treaty  states.  In  1869  the 
Tsungli  Yamen,  apropos  of  a  case  of  robbery  committed 
by  certain  unknown  foreigners  in  Chefoo,  sent  a  circular 
note  to  the  foreign  legations  at  Peking  stating  that  when 

•  70  New  Coll.  (General),  3.3. 

*  II  Hsuen  Tung's  New  Laws  and  Ordinances,  41. 


469]  SUBJECTS  OF  NON-TREATY  POWERS  2,47 

persons  of  non-treaty  powers  committed  crimes  on  land  or 
water  within  the  Chinese  dominions,  they  should  be  ar- 
rested, tried,  and  punished  by  the  Chinese  authorities  ac- 
cording to  Chinese  law;  and  the  published  replies  of  the 
American,  British,  and  French  representatives  show  that 
they  all  admitted  the  principle  without  question,  although 
they  made  suggestions,  also,  looking  to  the  mitigation 
of  the  rigor  of  the  Chinese  criminal  law  in  cases  where 
foreigners  of  non-treaty  powers  were  defendants/  Re- 
cently the  Chinese  Government  has  redoubled  its  efforts  to 
safe-guard  the  rightful  jurisdiction.  In  the  police  regu- 
lations for  the  ports  voluntarily  opened  by  China  to  foreign 
trade  it  is  uniformly  provided  that  when  foreigners  whose 
Governments  have  no  treaties  with  China  violate  the  laws 
or  regulations,  or  are  sued  in  a  civil  action,  the  case  shall  be 
tried  and  adjudicated  by  Chinese  authorities." 

An  interesting  case  in  which  a  subject  of  a  non-treaty 
power  was  defendant,  occurred  in  1904,  and  was  summar- 
ily dealt  with  by  the  Chinese  authorities.  Within  four 
months  of  his  stay  in  Peking  this  individual  committed  six 
grave  crimes,  such  as  assault  and  battery,  highway  robbery, 
and   the   like.      Strangely,    the   police   department    in    the 

^  The  American  minister  suggested  that  in  such  cases  a  foreign  con- 
sul might  be  invited  to  assist  in  the  trial  by  Chinese  authorities.  The 
British  and  French  representatives  reserved  their  right  of  interposing 
in  behalf  of  those  foreigners  who  asked  for,  and  they  consented  to 
extend  to  them,  their  good  offices.  The  French  minister  intimated  also 
that  in  a  case  where  a  subject  of  a  non-treaty  state  was  defendant  he 
"should  not  be  subjected  to  unduly  severe  punishment,  in  order  to 
avoid  incurring  the  displeasure"  of  foreign  nations.  The  English 
minister  expressed  "  his  hope  that  since  the  Chinese  criminal  code  is 
exceedingly  severe,  the  case  may  not  always  be  decided  according  to 
Chinese  law,  lest  it  will  violate  the  feelings  of  the  foreign  people." — 
69  New  Collection  (General),  14-15. 

'  See,  for  example,  articles  6  and  7  of  the  Regulations  for  the  port  of 
Chinanfu,  1904,  H.  Ex.  Doc,  59  Cong.,  2  Sess.,  p.  166. 


348  THE  STATUS  OF  ALIENS  IN  CHINA  [470 

Chinese  capital  at  the  outset  did  not  order  his  arrest  but 
went  about  to  ascertain  his  nationality,  as  he  had  refused 
to  reveal  it.  The  doyen  of  the  diplomatic  corps,  the  Aus- 
trian minister,  stated  that  if  the  culprit  refused  to  tell  the 
truth  about  his  own  nationality,  China  might  expel  him 
from  the  country.  It  appeared,  afterwards,  however,  that 
he  was  a  Greek  subject  under  the  nominal  protection  of 
the  French  legation.  When  approached  for  information, 
the  French  minister  stated  that  the  Greek,  being  an  in- 
veterate criminal,  had  long  been  placed  outside  of  the  pale 
of  French  protection,  and  that  he  would  not  interfere  at  all, 
but  leave  him  to  be  dealt  with  by  other  nations  as  they  saw 
fit.  Thereupon  he  was  arrested  by  the  local  police  and 
taken  to  Tientsin,  where  he  was  tried  before  Tan  Shao-yi, 
then  Customs  Taotai  at  that  port,  convicted,  his  property 
worth  about  $320  was  confiscated,  and  he  himself  sen- 
tenced to  imprisonment  with  the  proviso  that  he  would  be 
released  as  soon  as  some  reliable  foreign  firm  appeared  to 
guarantee  that  he  would,  after  release,  immediately  leave 
China  and  never  return  again.  ^ 

As  may  be  gathered  from  what  has  been  said  at  the  be- 
ginning of  the  section,  the  fact  that  the  subjects  of  a  non- 
treaty  power  are  placed  by  their  own  Government  under 
the  friendly  protection  of  a  foreign  legation  in  the  Chinese 
Capital,  does  not  at  all  entitle  them  to  the  treaty  exemption 
from  the  jurisdiction  of  Chinese  Courts.  In  1908  when 
the  German  minister  represented  to  the  Waiwu  Pu  that 
in  compliance  with  Turkey's  request  the  German  Govern- 
ment had  instructed  him  to  act  in  behalf  of  the  Turkish 
Government  in  matters  arising  between  China  and  Turkey, 
the  Waiwu  Pu  replied  that  the  German  minister  would  be 
recognized  "  as  the  intermediary  between  the  two  countries 

'  K)  Neiv  Collection  (General),  28-30. 


47 1  ]  SUBJECTS  OF  N  ON -TREATY  POWERS  349 

SO  far  as  ordinary  matters  were  concerned  ",  but  that  it 
wished  to  declare  again  that  "  subjects  of  non-treaty  powers 
residing  in  China  are  subject,  as  heretofore,  to  the  judicial 
power  of  China,  and  they  will  be  treated  in  the  same  man- 
ner as  Chinese  subjects.  In  a  word,  whatever  the  case  may 
be,  Turkish  subjects  will  be  dealt  with  as  the  subjects  of 
other  non-treaty  states."  Instructions  to  this  effect  were 
also  sent  to  the  Provincial  authorities.^ 

*  70  ISieiv  Collection  (General),  ZZ- 


CHAPTER  XIX 

Conclusion 

From  the  foregoing  chapters  it  seems  clear  that  in  spite 
of  their  frequent  allegations  that  the  Chinese  are  exclu- 
sive and  anti-foreign,  foreigners  in  China  enjoy  very  many 
rights  and  privileges  which  are  not  accorded  to  aliens  in 
other  countries.  Their  persons,  their  dwelling  houses,  and, 
to  a  very  large  extent,  their  property  are  all  invested  with 
the  immunities  of  extraterritoriality.  It  is  true  that  this 
special  status  is  guaranteed  to  them  by  treaties  and  they  are 
therefore  entitled  to  it ;  yet  at  the  same  time  it  may  be  said 
that  their  peaceful  enjoyment  of  it  has  been  made  possible 
only  by  the  favorable  disposition  toward  them  alike  of  the 
Government  and  people  of  China.  Misfortunes  have  in- 
deed befallen  them  sometimes  as  the  result  of  official  mal- 
feasance or  mob  violence,  but  to  what  extent  this  fact  is 
peculiar  to  China,  is  fairly  an  open  question.  On  the 
other  hand,  the  Chinese  Government  itself  has,  as  a  rule, 
shown  a  keen  solicitude  for  their  security  in  person  and 
property,  and  has  treated  them  with  liberality  and  consider- 
ation. It  was  this  favorable  disposition  toward  foreigners 
as  such  which  led  China  to  accord  them  the  privilege  of  un- 
restricted intercourse  with  her  own  subjects  and  place  them 
on  an  equal  footing  with  the  latter  even  in  early  days  before 
the  conventional  period ;  and  although  the  rights  and  privi- 
leges which  they  now  possess  in  China  were  secured  at 
the  outset  with  the  aid  of  the  sword,  it  was  the  same  favor- 
able disposition  on  the  part  of  China  toward  aliens  which 
350  [472 


473]  CONCLUSION  351 

has  made  possible  not  only  the  peaceful  enjoyment  of  these 
rights  and  privileges  but  also  the  extension  of  the  same 
with  nearly  every  revision  of  the  treaties.  Instances  of 
restrictive  measures  against  foreigners  are  indeed  not 
wanting,  but  these  have  been  adopted  rather  for  protection 
against  their  abuse  of  the  extraordinary  immunities  which 
they  enjoy  rather  than  for  the  purpose  of  discriminating 
against  them  on  the  ground  of  their  alienage. 

Of  the  problems  which  have  arisen  from  the  intercourse 
between  Chinese  and  foreigners  in  China,  two  have  claimed 
the  greater  part  of  the  attention  of  the  Chinese  Govern- 
ment and  the  Governments  of  the  treaty  powers.  These 
are  religion  and  commerce,  being  a  natural  outcome  of  the 
fact  that  the  foreign  element  in  China  has  always  con- 
sisted mostly  of  missionaries  and  merchants.  To  take  the 
former  first,  missionary  cases,  or  church  cases  as  they  are 
called  by  the  Chinese,  have  occurred  with  a  discomfort- 
ing frequency;  chapels  have  been  burned,  missionaries 
killed  or  injured,  and  Chinese  Christians  have  fallen  vic- 
tims to  popular  wrath.  Many  of  these  cases  ended  with 
disastrous  consequences  to  China.  Over  a  billion  dollars 
have  been  paid,  a  number  of  strategic  points  of  territory 
have  been  reliquished,  the  prestige  of  the  nation  has  been 
seriously  impaired,  hundreds  of  officials,  high  and  low. 
have  been  humiliated,  and  thousands  of  lives  of  a  humbler 
order  have  been  sacrificed.  Yet  curiously  enough,  hardly 
a  single  one  of  these  has  ever  arisen  out  of  a  strictly  reli- 
gious controversy  based  on  differences  of  the  Chinese  and 
foreign  creeds.  One  and  all,  they  appear  to  have  taken 
birth  in  those  defects  of  personal  understanding  and  con- 
duct, on  one  side  or  the  other,  accentuated  by  racial  dis- 
crepancies, which  would  give  rise  to  misgivings  and  con- 
flicts everywhere  as  between  individuals,  or  groups  of  in- 
dividuals, of  diverse  races.     To  be  precise,   the  so-called 


352  THE  STATUS  OF  ALIENS  IN  CHINA  [474 

church  cases  are  all  traceable  either  to  the  ignorance  of  the 
masses  which  led  them  to  lend  a  credulous  ear  even  to  the 
most  fantastic  stories  about  the  doings  of  the  foreign  eccles- 
iastics, or  to  the  excess  of  zeal  or  want  of  prudence  on  the 
part  of  the  Christian  missionary.  At  first,  cases  of  this 
sort  emerged  mostly  between  the  foreign  missionary  and 
the  local  people ;  later,  between  the  latter  and  Chinese 
Christians,  and  recently,  to  the  surprise  of  the  non-Chris- 
tian people,  between  Protestant  and  Catholic  converts.  The 
nation-wide  feeling  engendered  by  this  phase  of  China's  for- 
eign intercourse  has  been  intense,  always  approaching  the 
pitch  of  indignation  whenever  any  of  the  treaty  powers 
sought  to  make  political  capital  out  of  the  unfortunate  kill- 
ing of  one  or  two  of  its  venturesome  missionaries. 

This  question  of  church  cases  at  one  time  reached,  in 
fact,  such  a  degree  of  importance  that  it  was  deemed  advis- 
able to  insert  a  special  provision  in  the  British  treaty  of 
September  5,  1902,  wherein  Great  Britain,  undoubtedly  ap- 
preciating the  momentous  character  of  the  problem,  agrees 
to  join  in  a  commission  to  investigate  it  and  devise  means 
for  its  solution,  whenever  such  commission  should  be 
"  formed  by  China  and  the  Treaty  Powers  interested."  ^ 
No  such  commission,  however,  has  been  formed  as  yet  and, 
unless  there  be  another  outbreak  of  such  serious  cases  as 
those  taking  place  in  1891,  1895,  or  in  1900,  which  is  very 
unlikely,  it  will  probably  never  be  formed  in  future,  at  least 
not  with  the  question  now  under  consideration  as  its  prin- 
cipal object. 

Fortunately  few  church  cases  occur  now  as  compared 
with  former  years,  and  the  number  is  growing  less  every 
year.  Besides,  not  only  have  foreign  nations  in  late  years 
abstained  from  seizing  upon  missionary  cases  as  a  means 

'  Art.  xiii,  Hertslet's  China  Treaties,  i,  p.  183. 


475]  CONCLUSION  353 

to  attain  their  political  ends,  but  some  of  them  have  taken 
steps  to  prevent  a  too  frequent  breach  of  the  public  peace 
by  their  own  evangelists  in  China.  Great  Britain,  for 
example,  now  prohibits  by  law,  and  under  the  penalty  of 
imprisonment  or  fine  or  both,  the  public  deriding,  mock- 
ing, or  insulting  by  a  British  subject  of  any  religion  es- 
tablished or  observed  in  China :  ^  and  also  enjoins  its  mis- 
sionaries not  to  intervene  in  behalf  of  themselves  in  mat- 
ters relative  to  the  prosecution  of  missionary  work  or  in 
behalf  of  their  converts  in  any  matter."  With  such  wise 
precautions  as  these;  with  the  granting  to  Protestant  mis- 
sionaries in  the  American  treaty  of  1903  of  a  defined  privi- 
lege of  residence  and  property- holding  in  the  interior,  just 
as  the  same  privilege  was  conferred  upon  Catholic  mission- 
aries in  the  Berthemy  convention  of  1865;  with  the  in- 
creasing appreciation  on  the  part  of  Chinese  officials  of  the 
necessity  of  settling  each  church  case  as  it  arises  and 
settling  it.  not  to  appease  the  mind  of  one  party  alone, 
generally  the  foreign  party,  but  justly,  to  the  satisfaction 
of  both,  so  as  to  avoid  adding  grievance  upon  grievance  in 
the  view  of  the  people  and  adding  claim  upon  claim  for 
redress  on  the  side  of  the  missionary,  and  finally  wnth  the 
rapid  enlightenment  of  the  Chinese  masses  and  the  grow- 
ing regard  on  the  part  of  foreign  evangelists  for  the  sensi- 
bilities and  susceptibilities  of  the  local  populace,  there  is 
now  every  reason  to  hope  that,  although  missionary  cases 
may  still  occur  now^  and  then,  the  missionary  question,  as  it 
has  been  understood,  will  soon  cease  to  wear  the  aspect  of 
exceptional  importance  which  it  has  worn  heretofore,  and 
will  retire  to  the  place  where  it  properly  belongs,  in  the 
unofficial  intercourse  between  Chinese  and  foreigners. 

1  China  and  Corea  Order  in  Council,  October  24,  1904,  art.  76,  Herts- 
let's  China  Treaties,  ii,  p.  862. 

"  Circular  of  Sir  E.  Satow,  British  minister  to  Peking,  to  British 
consuls  in  China,  August  31,  1903,  Hertslet's  China  Treaties,  ii,  p.  1181. 


354  THE  STATUS  OF  ALIENS  IN  CHINA  [476 

The  other  problem,  that  of  commerce,  is  intimately  as- 
sociated with  the  question  of  extraterritoriality.  The 
needs  of  international  commerce  unquestionably  require, 
on  one  hand,  the  untrammeled  development  of  a  promising 
market  such  as  China  doubtless  affords,  and,  on  the  other, 
a  more  uniform  and  less  artificial  system  of  relationship 
between  Chinese  and  foreign  merchants  than  the  one  now 
prevailing  under  the  extraterritorial  jurisdiction.  The  ap- 
palling diversity  of  laws  and  courts  needs  to  be  replaced  by 
a  single  and  simple  set  of  Chinese  tribunals  and  Chinese 
laws,  and  the  whole  country  needs  to  be  opened  up  to  the 
free  resort  and  residence  by  foreign  merchants,  before 
foreign  commerce  in  China  can  really  attain  the  stage  of 
development  which  is  now  hoped  for  by  many  persons 
interested  in  it.  All  this  is  undoubtedly  perceived  by  the 
enlightened  and  far-sighted  merchants  of  all  nationalities. 

But  to  accomplish  this  is  not  the  task  of  China  alone 
but  the  work  of  the  treaty  powers  as  well.  So  long  as  the 
latter,  whatever  tribute  they  may  pay  in  words  to  China's 
growing  desire  to  recover  her  jurisdiction  over  foreigners 
within  her  territory,^  remain  tenacious  in  the  maintenance 
of  the  principle  of  extraterritoriality,  it  is  unlikely  that 
China  will  be  anxious  to  level  down  the  barriers  which  now 
stand  in  treaties  between  the  open  ports  and  the  interior 
or  to  remove  the  restrictions,  which  are  now  found  in  her 
laws,  upon  the  freedom  of  the  foreign  merchant  to  share 
in  the  unprecedented  opportunities  for  trading  and  in- 
vestment throughout  the  country.     Purely  from  the  prac- 

'  Great  Britain,  in  the  treaty  of  September  5,  igoj,  Japan  and  the 
United  States,  in  their  respective  treaties  of  October  8,  1903.  have  each 
agreed  "to  give  every  assistance"  to  China's  judicial  reform  and  de- 
clared herself  prepared  to  relinquish  her  extraterritorial  rights  "when 
satisfied  that  the  state  of  the  Chinese  laws,  the  arrangement  for  their 
administration,  and  other  considerations  warrant  her  in  so  doing." — 
See  Hertslet's  China  Treaties,  i,  pp.   182,  :i,^7,  575. 


477]  CONCLUSION  355 

tical  point  of  view  it  would  seem  inexpedient  to  permit 
alien  commercial  houses  to  be  established  broadcast  in 
every  part  of  the  land  when  they  are  still  invested  with  the 
immunities  of  extraterritoriality;  for  while  missionaries  in 
the  interior,  apart  from  their  occasional  demonstrations  of 
exuberance  of  spirit  in  evangelical  work,  which  have  given 
birth  to  many  an  anti-missionary  riot,  have,  as  a  class,  been 
little  impeachable  in  their  private  conduct,  it  would  be  en- 
tirely a  different  case  with  foreign  merchants,  for  in  their 
train  there  are  apt  to  be  characters  of  all  kinds  and  grades. 
The  desired  freedom  and  free  development  of  commerce  can 
be  fully  obtained  only  by  China  and  the  treaty  powers 
working  together.  It  seems  that  their  interests  being  in- 
trinsically common,  each  may  justly  be  expected  to  contri- 
bute her  quota  to  secure  their  advancement.  If  China  or 
any  of  the  foreign  states  maintaining  treaty  relations  with 
her  is  bent  upon  getting  something  for  nothing,  little  can 
be  done  either  for  recovering  territorial  rights  on  one  hand 
or  for  obtaining  full  commercial  freedom  on  the  other. 
Mutual  forbearance  and  reciprocal  concession  are  no  less 
the  best  policy  in  the  intercourse  between  nations  than  in 
the  relations  between  individuals ;  and  history  has  shown 
that  few  international  questions  of  an  important  character 
have  been  peacefully  settled  without  observing  these  ap- 
parently commonplace  principles.  In  other  words,  intelli- 
gent co-operation  alone  can  enable  each  to  realize  his  legiti- 
mate object,  whether  jurisdiction  or  commerce. 

If  the  signs  of  the  time  are  read  aright,  such  co-operation, 
however,  seems  to  be  forthcoming.  Both  China  and  the 
treaty  powers  have  begun  to  realize  that  sound  and  smooth 
international  relations  between  them,  as  between  other 
states,  must  be  built  on  sincere  international  goodwill,  and 
their  common  delusions  as  to  the  inherent  antagonism  of 
Chinese  and  foreign  interests  are  gradually  giving  way  to 


356  THE  STATUS  OF  ALIENS  LV  CHINA  [478 

a  groAving  appreciation  of  the  substantial  identity  of  these 
interests.  China,  on  one  side,  has  in  recent  years  opened 
up  on  her  own  initiative,  a  number  of  new  places  to  foreign 
trade  and  has  already  set  herself  to  the  task  of  improving 
her  mercantile  system  to  meet  the  needs  of  foreign  com- 
merce. Many  of  the  treaty  powers,  on  the  other  side,  have 
come  to  appreciate  the  capabilities  and  potentialities  of  the 
Chinese  people  and  have  begun  to  see  the  futility,  perhaps 
the  folly,  of  entwining  international  politics  with  inter- 
national commerce;  they  are  beginning  to  direct  their 
energies  into  the  broad  and  straight  channels  of  legitimate 
and  pure  commercial  development.  In  short,  between 
China  and  the  treaty  powers  there  seems  to  be  rising  a  feel- 
ing of  community  of  interest,  and  evidence  is  beginning  to 
crystallize  of  their  willingness  to  co-operate  for  the  pur- 
pose of  attaining  their  common  object. 

From  a  larger  point  of  view,  not  only  commerce  but 
peace,  its  best  guarantee,  will  be  promoted  by  the  co- 
operation of  the  treaty  powers  with  China,  and  this,  too, 
seems  to  be  perceived  by  the  latter.  The  chronic  riots  and 
civic  commotions  in  the  past;  which  proved  so  disastrous 
to  commerce,  are  traceable  to  the  weakness  of  the  former 
Central  Government  as  its  primary  cause.  But  now  the 
people  of  the  nation  have  overthrown  the  worn-out  regime 
of  hoary  antiquity  and  are  erecting  on  new  foundations  a 
strong  and  efficient  government.  If,  to  the  intelligent  and 
intensely  patriotic  efforts  of  the  Chinese  people  to  regen- 
erate their  country,  there  are  added  the  sympathy  and 
moral  support  of  the  treaty  powers,  the  rise  of  a  powerful 
and  progressive  China  will  surely  be  hastened  a  hundred- 
fold. And  China  in  progress  and  power  means  the  Far 
East  in  permanent  peace. 


TOPICAL  INDEX 


(Note:  Consult  Analytical  Table  of  Contents.) 


Agnes,  case  of  the  Bark,  197 

Arabs,  early  visits  to  China,  15 

Assessors,  in  mixed  cases,   177 

Austria-Hungary,  treaty  with,  169 

Assimilation,  doctrine  of,  206 

Belgium,  trea  y  with,   169 

Benedict  XII,   19 

Brazil,   treaty  with,    169,   175 

British,  first  visi  s  to  China,  25  ff. ; 
early  attempts  to  address  the  em- 
peror, 41  ff.;  court  of  justice  es- 
tablished in  China,  95  ff. ;  pro- 
posed civil,  criminal  and  admiralty 
courts  of  1838,  112  ff. ;  war  with 
China  over  opium,  129  ff. ;  extra- 
territorial rights  conceded  to, 
^23  fi-',  legislation  and  orders  on 
extra  erritoriality,  138  ff.;  civil 
jurisdiction  in  China,  170  ff.; 
courts  in  China,  181  ff.;  lease  of 
Weihaiwei,  254 

Buddhist,  missionaries,  290,  note. 

Burgevine,  General,  case  of,  204  flf. 

Cadogan,  case  of  the,  56 

Canton,  early  trade  at,  32,  34; 
trade  arrangements  at,  35  ff. 

Catholics.  See  Rome  and  mis- 
sionaries. 

Centurion,  case  of  the,  67 

Chef 00   conven  ion,    174,    186 

Christianity,  early  papal  embassies, 
16,  19;  early  dissensions  among 
missionaries.  29  ff. ;  persecution, 
30.     See  Missionaries. 

Code,   see   Penal   Code. 

Cohong,  35  ff..  43 

Companies,  joint-stock,  rights  of 
alien  investment  in.  2S6  ff. 

Consuls,  early  appointments  for 
China,  46;  sec  Jurisdiction. 

Courtc.  extraterritorial  in  China, 
I79ff. 

Criminal  cnses.  early,  171  ff. ;  under 
extraterri.orial   jurisdiction,    194 
479] 


Cushing,  Caleb,  theory  of  extra- 
territoriality, 146  ff. ;  mission  to 
Chma,  156  ff. 

Customs  duties,  internal,  277  ff. 

Debts  due  aliens,  early  methods  of 
liquidation,   43  ff. 

Defence,  case  of  the,  86 

Denmark,  treaty  wi  h,   169 

Doris,  case  of  the,  68 

Dutch,  first  operations  in  China,  25 

Earl  of  Balcarras,  case  of  the,  78  f. 

East  India  Company  (British), 
early  operations  in  China,  25; 
36  ft-.;  49  ff.;  66  ff.;  74;  95  ff.;  117 

East  India  Company  (Dutch),  27 

Emily,  case  of  the,  54 

Extraterritoriality,  genesis  of,  in 
China,  62  ff. ;  concession  to  Brit- 
ish, 133  ff. ;  Cushing's  theory  of, 
146  ff. ;  concession  to  the  United 
States,  146  ff. ;  criminal  jurisdic- 
tion, 166  ff..;  in  leased  ports, 
25s  ff. ;  in  Turkey,  214  ff.;  west- 
ern ideas  of,  216  ff. 

France,  treaties  with,  167,  291 ; 
criminal  jurisdiction  in  China, 
167  ff. ;  and  protection  of  Catholic 
missionaries,  297  ff.  See  mission- 
aries. 

Genghis  Kahn,  15  f. 

Germany,  treaty  with,  169  (1880); 
269;  lease  of  Kiaochow,  252  f. 

Great  Britain,  see  British. 

Gregory  X,  16 

Holy  See,  see  Rome  and  Mission- 
aries. 

Innocent  IV,  15 

International  law,  limitations  of,  on 
extraterritorial   jurisdiction,    199 

Japan,  treaties  with.  169,  175,  267; 
treaty  of  Shimonoseki,   170,  no'e. 

Jurisdiction,  Chinese  notions  of, 
47;  earlv  exercise  over  foreign- 
ers, 49  ff. ;  early  attitude  of  aliens 
357 


358 


TOPICAL  INDEX 


[480 


toward  Chinese.  63  fT. ;  British  re- 
sistance to,  68  It. ;  92  ft'. ;  Ameri- 
can attitude  toward  Chinese, 
158  ff.;  civil,  under  extraterritor- 
iality, 170  ff.;  extent  of  extrater- 
ritorial, 193  ff. ;  extraterritorial, 
limitations  on,  19O  ft'. ;  concur- 
rent, 159  ff.;  personal  character 
of.  205  ff. ;  Chinese,  over  subjects 
of  non-trea'y  powers,  343  ff.  See 
Extraterritoriality. 

Kiakhta.  treaty  of,  51  ff. 

Kiaochow,  leased  to  Germany,  252f. 

King  George,  case  of  the.  86 

Kuldja,  treaty  of,   175,  note. 

Kwongchowwan,  leased  to  France, 

253 

Lady  Hughes,  case  of  the,  54,  69  ff. 

Lady  Melville,  case  of  the,  51 

Land,  alien  property  in  (missions), 
315  ff. 

Law.  see  Penal  Code;  as  adminis- 
tered to  aliens,  184  ff.;  of  China, 
to  be  observed  by  aliens,  219  ff. 
See  International  law. 

Leased  ports,  jurisdiction  over 
aliens  in,  255 

Legation,  quarter  of  in  Peking, 
266  ff. 

Liou.  case  of  the,  74 

Macao,  seizure  by  Portuguese,  21 ; 
early  criminal  cases  at.  55 

Madras,  case  of  the.  71  f. 

Merchants,  alien,  early  treatment 
of,  18  ff.;  in  China.  277  f{.;  rights 
of  trade,  280  ff. ;  rights  of  invest- 
ment, 286  ff. 

Mexico,  treaty  with,  169.  175 

Mines,  conditions  imposed  on  alien 
operation.  282  ff. 

Missionaries.  See  Christianity; 
early  toleration  of,  290  ff. ;  ex- 
pulsion of,  291 ;  recognition  of 
rights  of  (1846),  291;  Russian, 
292;  United  States,  292;  control 
and  protection  of,  293  ff. ;  France 
as  protector  of  Catholic  missions, 
297  ff. :  Great  Britain  and  Cath- 
olic missions,  .300  ff. ;  equal  trea'- 
ment  of,  309  ff. ;  rights  of  resi- 
dence and  property  in  interior, 
283,  note,  315  ff.:  secular  work 
of.  3.34;  cause  of  friction  between 
China  and  alien  nations,  351  ff. 


Missionaries,  Buddhist,  rights  of, 
in  China,  289,  note. 

Mongols,  invasion  by,  15  ff. 

Mixed  cases,  173 

Nanking,  treaty  of,  59,  133  ff. 

Napier.  Lord,  mission  to  China, 
103  ff. 

Neptune,  case  of  the,  72  ff. 

Nes  orians,  ig 

Nicholas  IV,  16 

Non-treaty  powers,  rights  of  sub- 
jects of,  in  China,  343 

Norway  and  Sweden,  169 

Opium,  trade  in,  38,  47 ;  smuggling, 
66.  Ill  ;  war  over,  129  ff. 

Outbreaks,  against  aliens,  338  flF.; 
causes  of,  351  ff. 

Passports,  for  alien  travelers  in 
China,  268  ff. ;  for  merchants, 
277  ff. 

Penal  code.  Chinese,  49  ff.,  74  note; 
character  of,  80  ff. ;  compared 
with  British,  89  ff..  124  ff. 

Peking,  legation  quarter  in,  266  ff. 

Perez,  case  of,  22 

Polos,  visit  to  China,  16 

Pope.  See  Rome  and  Missionaries. 

Portugal,  treaty  with,  169 

Portuguese,  early  visit  to  China, 
21  ff. ;  establishment  of  posts,  24; 
war  with  Dutch,  28 

Port  Arthur,  lease  to  Russia,  253 

Ports,  Treaty,  privileges  of  aliens 
at,  229  ff. ;  limits  of,  246  ff. 

Ports,  opened  volunarily  by  China, 
250;  leased  by  China.  252  ff. ;  call, 
264  ff.;  open  to  trade,  list  of,  265 
note. 

Property,  protection  of  alien,  336  flF. 

Railways,  condi:ions  imposed  on 
alien  operation,   282  ff. 

Rome,  early  relations  with  China, 
13  ff.;  and  protection  of  Catho- 
lics, 301  ff. 

Royal  George,  case  of  the,  50 

Russia,  treaties  with,  11,  51,  169, 
175 

Scott,  Francis,  case  of,  55 

Settlements,  foreign,  230  ff. ;  muni- 
cipal ordinances  in,  233  ff. 

Shanghai,  port  of  and  settlement 
in,  231  ff. 


48i] 


TOPICAL  INDEX 


359 


Sheen,  Edward,  case  of,  74,  97,  124, 

Shimonoseki,  treaty  of,  170,  note, 
265 

Sovereignty,  early  Chinese  notions 
of,  47 

Spain,  treaty  with,  169 

Staunton,  Sir  George,  on  the  Chin- 
ese criminal  laws,  88  ff.,  123  ff. ; 
views  on  British  courts  for 
China,  95  ff. 

Sue  Aman,  case  of,  162  f. 

Talienwan,  leased  to  Russia,  253 

Terranova,  case  of,  54 

Trade,  in  the  interior,  278  ff. ;  treaty 
limitations  on  rights  of,  280  ff. 

Topaze,  case  of,  76  ff.,  84  ff.,  123 


Travel,  conditions  imposed  on 
alien  in  China,  268  ff. ;  projection 
afforded,  396 

Turkey,  extraterritorial  jurisdiction 
in,  214  ff. 

United  States,  conceded  extrater- 
ritoriality, 146  ff.;  criminal  juris- 
diction in  China,  167;  civil  juris- 
diction in  China,  171  ff.;  courts 
in,  182  f.;  passports,  27^;  zeal  in 
protecuon  of  missionaries,  328  ff.; 
use  of  gunboats  to  protect  na- 
tionals, 338,  note. 

Vul-na-ro,  case  of,  281 

Wanghai,  treaty  of,  146 

Weihaivvei,  leased  to  Great  Britain, 
254.  259  ff. 

Whampoa,  treaty  of,  167 


1032 


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